26 Me. 33 | Me. | 1846
The opinion of the Court was drawn up by
The indictment against the defendant contains an accusation of the crime of perjury, alleged to have
Before a party can be admitted to testify, in reference to his book accounts, his book may be required by the adverse party, to be submitted to the inspection of the Court,,who are to determine whether its appearance is such as to render it proper to admit him to testify at all. It must appear to be free from indications unfavorable to its fairness. It must purport to contain entries made daily, as the occasion may have required, of the items of his accounts, with the opposite party at least, if .not with different individuals, 1 Greenl. Ev. note to <§> 118. In exercising this species of discretion it is often necessary for the Court to have reference to the habits, course of business, and the capacity of the individual to keep accounts. A merchant would be expected to have books very differently kept from those of handicraft mechanics or day laborers. The Court being thus satisfied of the propriety of admitting a party to testify, it has been usual to admit him to what has been
The practice, without doubt, in Massachusetts and Maine, has been to administer an oath, in such cases, merely to make true answers to such questions as shall be asked by the Court, or the order thereof, as in the case of the voire dire to a witness, supposed not to be free from interest in the event of a suit. And, in the case of such witnesses, the practice of administering the voire dire has fallen very much into disuse. The general oath is often administered to them, and inquiries are made of them, the same as if under the more appropriate oath, for the purpose of ascertaining whether they are interested or not. If indicted for perjury, in reference to such disclosures, it would not be competent for them to object, that the appropriate oath had not been administered to them ; for the general oath would be considered as embracing the obligation to speak the truth, as to their interests in a suit, the same as if sworn in the more limited form. Indeed, it is not uncommon to administer an oath generally, when a restricted inquiry only would be admissible; as in the familiar case of attorneys, and those who are privileged from answering questions tending to their crimination. And, in cases in which parties may be admissible to testify in reference to their book accounts, it may well be doubted, whether the general oath might not with more propriety be administered, for the adverse party has the right to a rigorous cross-examination in reference to the account, and books, of the party producing them. Either party might, perhaps, be allowed to object to the administration of the general oath, or might insist on confining the testimony' to the subject of the account and books. But if neither party-made any objection to the administering of the oath in general
But the proceeding, in which the alleged peijury occurred, was not in strictness at common law : and in Fuller v. Wheelock, 10 Pick. 135, it was remarked by the Court, in delivering their opinion, that there is no doubt that referees may receive the testimony of incompetent witnesses, if in their judgment the justice of the ease should require it. This, however, it is argued, was but an obiter dictum. But it is in consonance with the generally received opinion, that referees, not restricted by the terms of the submission, are not restricted by the rules of evidence obligatory in proceedings at common law. And it may be inferred, at least, that, where a party offers himself as a witness before referees, and is sworn generally to tell the truth, without objection on either side, he would be so far a legal witness, that any testimony which he might voluntarily give, knowing it to be false, should be deemed perjury, but more especially should such be the case if he were no otherwise to testify, than to such matters as might legally be drawn from him at common law; and the testimony in question was of this latter class.
It is objected, secondly, that the items of the account, exhibited by the defendant, should have been specified in the
It is not essential to the maintenance of the indictment, as urged in argument, that there should appear in it to have been any final determination by the referees. It is sufficient that it is alleged, that they proceeded to hear the parties, and that the false testimony was given in a due course of proceeding before them.
The demurrer is overruled.