85 Neb. 366 | Neb. | 1909
Mrs.r Alpliia M. Shevalier, plaintiff in error, hereinafter called the defendant, was convicted of the crime of perjury and sentenced to serve a term of five years in the
The statute under which the prosecution is brought is as folloAVs: “If any person having taken a laAvful oath, or made laAvful affirmation in any judicial proceeding, or in any other matter Avhere, by Iuav, an oath or affirmation is required, shall upon such, oath or affirmation wilfully and corruptly depose, affirm, or declare 'any matter to be fact, knowing the same to be false, or shall in like manner deny any matter to be fact, knowing the same to be true, every person so offending shall be deemed guilty of perjury, and shall be imprisoned in the penitentiary not more than fourteen years nor less than one year.” Criminal code, sec. 155. The defendant argues that the facts stated in the information do not constitute an offense punishable by the laws of this state. It is fundamental that, to sustain this charge, the alleged unlawful SAvearing must be with reference to a matter that is material in the action in which the testimony .which is alleged to be false is given. In 3 Coke’s Institutes, 164, the offense is thus defined: “Perjury is a crime committed, when a lawful oath is ministered by any that hath authority, to any person, in any judicial proceeding, who SAveareth absolutely, and falsely in a matter material to the issue, or canse in question, by their own act, or by the subornation of others.” Rex v. Griepe, 1 Ld. Raym. (Eng.) 256: “False evidence if immaterial is not perjury.” Hood v. State, 44 Ala. 81: “Perjury is a corrupt, wilful, false; oath taken in a judicial proceeding in regard to any matter or thing material to a point involved in the proceeding.” People v. Collier, 48 Am. Dec. 699 (1 Mich. *137) : “Indictment for perjury must show on its face that the false allegation was material to the matter in question. * * * Innuendo in indictment for perjury is bad when there is nothing previously stated to which it can refer.” State v. Anderson, 103 Ind. 170: “An indictment for perjury, *• * * predicated upon an affidavit for a continuance of a pending cause, must show by a specific
In the present case the information charges the defendant with being a petitioner in the county court and asking that tribunal to set a time for proving the alleged Avill of one Helen A. Horn, deceased. She is also charged Avith asking that said will be proved and probated, and it is alleged she appeared in said cause in said court and, on being SAVorn upon the hearing of said petition by the judge of said court, then and there in a matter material to said cause wilfully, corruptly and feloniously testified that certain matters were true in regard to said petition and judicial proceeding. The information then specifically alleges that the defendant testified that she did not find any clothing or any furs in the house of the said Helen A. Horn, deceased. This testimony of the defendant, as has been shown, the information alleges is false. In other counts she is charged in substantially a like manner with having testified that she did not find a sealskin coat and some diamonds and over $5,000 in the said house, and that she did not have them in her possession. The information also alleges this testimony of the defendant to be false. The main facts that were before the county court had to do merely with the question of setting a time for proving the alleged Avill of Helen A. Horn, and in asking for its probate. These facts alone, as shown by the information, were the facts immediately in issue. None of the testimony of the defendant, which it is alleged by the information was false, is in any way material to that issue so far as appears from the face of the information, and considered apart from the general averment of materiality. Our court and other jurisdictions as well have defined the nature of the proceedings in which the information alleges the false testimony Ayas given by the de
The state contends that matters affecting the character or credit of a witness are material, and in its brief argues: “It will be borne in mind that at the hearing upon the probate of the last will and testament of Helen A. Horn, deceased, the defendant swore that she knew nothing of any sealskin coat, diamonds, or money belonging to deceased. It seems that her testimony was false in this respect. It afterwards developed that she had purloined the various articles including the money that she was questioned about and of which she denied all knowledge. It cannot be doubted that it would have affected her credibility if the court had known that before the will had been probated she liad surreptitiously taken possession of thousands of dollars’ worth of personal property belonging to the estate. Her testimony in
The defendant also points out and argues at length that “it must appear from the information that the alleged oath was administered by one having legal authority; otherwise there is no perjury if false testimony be given under it.”. This is no doubt true. If the indictment or information fails to show upon its face that the oath was administered by one having legal authority, it does not state an offense and would be subject to demurrer. 1 Russell, Crimes, p. 297. Under the statute of 23 George II, o. 11, which statute section 422 of our criminal code follows in substance, it was necessary to aver that the court or authority had full power to administer the oath. By a later act this averment was made unnecessary. Speaking of the earlier statute, in Queen v. Dunning, 1 L. R. C. C. *290, it was said by the court for crown cases reserved:
The judgment of the district court is therefore reversed and the cause remanded.
Reversed.