37 Vt. 122 | Vt. | 1864
These two cases were heard together at the last term, and stand upon the same ground.
They are indictments for perjury. To sustain the demurrer, the respondents claim, 1st, that the alleged perjury does not appear to have been committed in any judicial proceeding, and 2d, that it is not alleged and does not appear that the false evidence was material to the issue.
First — is it alleged with sufficient certainty that the false evidence was given in a judicial proceeding?
The indictment says that “ Eliza E. Carpenter, on the 25th June, 1860, brought a petition of divorce addressed to the supreme court then next to be held,” &c., “ stating in her petition,” &c., and then states the substance and prayer of the petition for divorce, alimony and the custody of the child. It then proceeds as follows : “whereupon it became necessary to take the testimony of witnesses in the premises,” and then states that the respondents “ appeared before Henry M. Worth en, a notary public, and made his deposition as to facts in the premises,” &e.
The notary public had power to take the depositions in the case if the petition for divorce had been signed by the petitioner, and, with a summons signed by the clerk, had been served on the petionee, or if other, legal notice thereof pursuant to our statute had been given.
The words “ brought her petition to the supreme court,” it is admitted, express the idea of having made and signed the petition; but it is agreed that they do not convey any idea of service of it. If it were not for the decision in Slate v. Chamberlin, 30 Vt. 559, we should have much doubt whether the allegations in this indictment are sufficient to satisfy the strictness of the rule. But we think that ease is substantially like this and must govern it. There the words were, “ exhibited his certain bill of complaint in the court of chancery.” We do not think the word “exhibit” has any technical legal meaning beyond the words “bring,” “prefer,” “petition.’. They all convey the idea of commencing a proceeding in court.
In chancery the statute provides that the time of signing the subpoena or summons shall be deemed to be the time when the bill is filed. In cases of divorce, when the petition has been signed, and the summons to the libellee to appear and answer has also been signed and issued by the clerk, then we think the case must be deemed as pending in court. The court will not act till due service has been made or notice given, and would doubtless reject depositions taken before such service or notice. But cases are often entered in court and continued for notice by publication, where the order for publication has not properly been complied with. Their pendency is determined by the actual issuing of the citation or summons by the clerk.
It is said that in State v. Chamberlin, there was this further allegation — “ as by the orator’s bill of complaint remaining filed of record in the court of chancery will appear.” But this allegation adds nothing to the former one — “ exhibited his bill in the court of chancery.” By our statute a bill in chancery is deemed to be filed when the subpoena is signed by the clerk. It is further urged by the respondents that the words “ whereupon it became necessary to take the depositions of witnesses in the premises,” add nothing to the former one as showing the pendency of a suit in court, and does not sufficiently connect the alleged perjury with the petition. We think, however, that the words “ in the premises ” refer to the libel, and the whole expression is equivalent to this — “ whereupon it became ne
The indictment sufficiently connects the false evidence with the petition; and, following the decision in the 30th, we think the words “ brought a petition of divorce to the supreme court,” or, “ petitioned the supreme court,” sufficiently aver the pendency of the suit in court to make it a judicial proceeding.
As to the second point. It should either plainly appear on the face of the indictment that the false evidence was material to the issue-in the judicial proceeding; or else it should be expressly alleged that the false evidence was material. It is not necessary to state in the indictment what the issues were, and how the false evidence bore upon such issues, or was connected with other facts bearing upon them, so that it shall appear upon the lace of the indictment how it was material. It is sufficient if the indictment expressly avers that it was material to prove certain facts, and that the respondent falsely swore to those very facts.
The indictment avers, “it became and was material to show whether the said Sleeper was at the house of L. D. Carpenter on the morniug of the 2d of November, A. D. 1859, and whether he then had a conversation with said Carpenter, in the presence of certain other persons;” and then proceeds to allege that the respondent falsely swore “ that on the morning of Nov. 2d, 1859, he stopped at said Carpenter’s house and had conversation with Carpenter in the presence of one Magoon and the said Eliza E. Carpenter,” &c. Although it does not appear how this evidence was material, yet we think it sufficiently alleged that it was material. It cannot bo said that upon the face of the indictment it appears that the false evidence was immaterial, and that therefore the indictment is bad, notwithstanding the general averment of materiality; for it is easy to see how the alleged conversation, in connection with other facts, might be material both as to the alleged cause for divorce, and as to alimony.
The allegation that-the respondents “falsely, wilfully and corruptly” swore, is' sufficient without the word “ knowingly.”