State v. Chandler

42 Vt. 446 | Vt. | 1869

The opinion of the court was delivered by

Prout, J.

We haye no doubt but that a party may be guilty, technically, of tire crime of perjury in knowingly and wilfully swearing to a false affidavit, made in support and aid of a petition for a new trial. The proceeding is authorized by law and is judicial; and the practice in respect to the use of affidavits is provided for by a rule of the court. In the present case the affidavit of the respondent was served and filed with the petition, and if material to the issue involved in that cause, was entitled to be used on the hearing. Under such circumstances it would be indeed singular if there was no accountability in respect to it. But the present indictment having been demurred to, the question is as to its sufficiency. It alleges that the affidavit upon which the perjury is assigned was given by the respondent with the intent to aggrieve, injure and prejudice the said Powers in respect to their action pending in tbe supreme court against Silsby and Smith as well as in respect to the petition of the latter for a new trial in that cause. This is not an allegation that the affidavit was given and made by the respondent in aid or support of the petition for a new trial, or given in contemplation of its being preferred, which we think is matter of substance and should be alleged in the indictment. Otherwise the affidavit is extra judicial. Again, the affidavit as set forth in the indictment does not meet what is alleged therein to be material ; but, on the other hand, what is really sworn to by the respondent in his affidavit is not alleged to be material at all. The rule in this respect, and as to matter of averment in the indictment, is this: that it must appear, and affirmatively, that the testimony alleged to be untrue and false is material; and unless this is apparent from the evidence as set forth, it must be alleged. Now what was sworn to by the respondent is, that he saw Powers and Woodbury the juror start off together in the same carriage towards Lunenburg, and so in respect to another juror, which if untrue is not necessarily material to the issue in that cause. At all events it is not alleged to be. Then again if such was the fact, it may have been in a public conveyance for an innocent and necessary purpose. We think the indictment insufficient.

The judgment of the county court is reversed and the indictment quashed.