PENSIONS.

Sec. 789 (3593). Officer failing to discharge duties in regard to pensions. If any officer or other person shall neglect or refuse to discharge the duties imposed upon him by law in regard to pensions of Confederate soldiers, he shall be guilty of a misdemeanor, and upon conviction shall be fined or imprisoned, at the discretion of the court.

1889, c. 198, s. 15.

PENSION CLAIMS.

Sec. 790 (3732). Pension claims; speculating in.

If any person shall speculate in or purchase for a less sum than that to which each may be entitled the claims of any soldier or sailor, or widow of a deceased soldier or sailor, allowed under the provisions of the pension law, he shall be guilty of a misdemeanor and upon conviction shall be fined or imprisoned, or both, in the discretion of the court.

1903, c. 273, s. 12; 1885, c. 214, s. 12.

PER CURIAM OPINIONS.

The justices of the supreme court are not required to write out their opinions. Council, 129-511.

A person convicted of a capital felony is not prejudiced by the fact that this court renders a per curiam opinion affirming the conviction. Council, 129–

511.

PERJURY.

Sec. 791 (3246). Indictment for perjury.

In every indictment for willful and corrupt perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, and by what court, or before whom, the oath was taken (averring such court or person to have competent authority to administer the same), together with the proper averments to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceedings, either in law or equity, other than aforesaid, and without setting forth the commission or authority of the court or person before whom the perjury was committed.

Code, s. 1185; R. C., c. 35, s. 16; 1842, c. 49, s. 1.

Sec. 792 (3247). For perjury, form of.

In indictments for perjury the following form shall be sufficient, to-wit:

The jurors for the state, on their oath, present, that A. B., of county, did unlawfully commit perjury upon the trial of an action in court, in

county, wherein

was plaintiff and was defendant, by falsely asserting, on oath, (or solemn affirmation) (here set out the statement or statements alleged to be false,) knowing the said statements to be false, or being ignorant whether or not said statement was true.

1889, c. 83.

INDICTMENT QUASHING.-An indictment which fails to allege that defendant "knew said statement to be false," or that he was "ignorant whether or not said statement was true," is defective, but such defect would not warrant the court below in quashing the indictment, the proper course being for the court to hold the prisoner and permit the solicitor to send a new bill. Flowers, 109-841.

A conclusion "against the form of the statute in such case made and provided and against the peace and dignity of the state," is mere surplusage. Peters, 107-876.

The omission to charge any time in the indictment is no ground for arrest of judgment. Peters, 107-876.

The omission of the word "feloniously" is a fatal defect. Shaw, 117-764. A motion in arrest of judgment on the ground that the indictment does not specifically charge that the matters alleged to be sworn to were willfully, absolutely and falsely in a matter material to the point in issue can not be sustained. Thompson, 113-638.

INDICTMENT BEFORE 1889.-The omission to formally negative the truth of the alleged false testimony is not sufficient ground for arrest of judgment where such allegation sufficiently appears by necessary implication from other parts of the indictment. Murphy, 101-697.

An omission to charge that the oath was willfully and corruptly taken, is fatal, and the defect is not supplied by an averment that defendant "of his wicked and corrupt mind did commit willful and corrupt perjury." Carland, 14 (3 Dev.), 115.

Where the indictment alleges the perjury to have been committed in an action in which the "state was plaintiff and A B defendant," and the warrant is entitled "State and City of G v. A B," the words "and City of G" are mere surplusage. Peters, 107-876.

Where the perjury is alleged to have been committed on the trial of a criminal proceeding begun by a warrant, it is no defense that the warrant was issued without complaint or affidavit. Peters, 107-876.

An indictment charging that defendant "deposed and gave in evidence to the jury willfully and corruptly," sufficiently avers that he swore falsely. Bobbitt, 70-81.

An indictment for perjury which fails to aver that the false oath was taken willfully and corruptly is fatally defective. Davis, 84-787.

An indictment which alleges that the false oath was administered by a justice of the peace upon a coroner's inquest in the presence and at the request and direction of the coroner, the said justice then and there having sufficient power and authority to administer the said oath, is fatally defective. In such case the indictment should charge that the oath was administered by the coroner and that he had competent authority to administer it. Knight, 84-789.

Where the indictment states that the perjury was committed before a justice on a trial for the slander of an innocent woman, and that the justice had sufficient and competent authority to administer the oath, a motion in arrest of judgment on the ground that the indictment further charges that issue was joined and came on to be tried, when in fact the justice had no jurisdiction of the case, and no such issue could have been joined, can not be sustained. Roberson, 98-751.

Several assignments of perjury may be contained in one count of the indictment, and all of the several particulars in which the prisoner swore falsely may be embraced in the one count, and proof of the falsity of any one will sustain the count. Bordeaux, 93-560.

CAPTION TO INDICTMENT.-A caption to an indictment is necessary only when the court acts under a special commission, since where the court sits by authority of a public law everybody must take notice of it, and it is not necessary specially to set forth the power of the court. Warden, 4 (Taylor's Term Rep.), 596.

INDICTMENT FOR PERJURY COMMITTED BEFORE JUSTICE'S COURT.-An indictment under this section for perjury committed at a trial in a justice's court can not be quashed because the names of the justices are given in addition to the name of the court, since the addition of the names of the justices could not possibly prejudice the defendant, and is mere harmless surplusage. Indeed, it is probably better and certainly fairer to the defendant in such cases to give the name of the trial justice. Flowers, 109-841.

Nor is it any objection to such indictment that the perjury is alleged to have been committed before two justices "acting and sitting together," and that no such tribunal is known to our constitution, since The Code, sec. 1159, authorizes two justices to sit together in criminal proceedings and gives them the same "powers and duties" as are given to a single justice, and this section of The Code is in pursuance of the provisions of the Constitution, art. 4, sec. 12, which empowers the legislature to "allot and distribute" the judicial power and jurisdiction which does not pertain to the supreme court "in such manner as they deem best." Flowers, 109-841.

FELONIOUSLY-NOT NECESSARY. It is not necessary that the word "feloniously" should be used, since the statute expressly provides otherwise. Harris, 145

It is not necessary that an indictment for perjury committed in the superior court should name the judge before whom the false oath was taken. Bryson, 1-115.

EVIDENCE. Entries in the course of business, upon the books of a railroad company, made by one at the time an agent of the company, and still living, but absent from the state, are not competent evidence to show that certain cotton, in regard to which it was alleged that the perjury had been committed, had been received by defendant. Thomas, 64–74.

Where the perjury assigned is in falsely swearing in a bastardy proceeding that he, defendant, had never had sexual intercourse with the prosecutrix, and the prosecutrix testifies that she never had any such intercourse with any other man than the defendant, her relations with others constitutes a part of her charge against defendant, and he has a right to show by a witness that he had been criminally intimate with her before the birth of the child. Jones, 91-629.

Parol evidence is competent to show that, on the trial of an action before a justice of the peace, a nol. pros. was entered as to one of the defendants, since a justice's court is not a court of record. Green, 100–419.

Where the perjury assigned is that defendant swore in a civil case that he never had been a member of a certain firm, he may show as a defense that no such firm existed. Smith, 119–856.

The fact that some of the state's witnesses testified that defendant told them that he was a member of the firm did not estop him from showing that he was not a member and that his statement to such witnesses was not correct. Ibid.

A certified statement of the register of deeds showing how much property was listed for taxation by defendant, not being a copy of such list, is incompetent. Section 1342 of The Code makes competent only copies of official records. Champion, 116-987.

Where the perjury assigned is that defendant falsely swore that he did not have an axe in a fight and the person assaulted testifies that defendant did have an axe with which he inflicted a wound on witness's head, testimony of a physician that the wound "was made with a sharp-edged instrument" is sufficient corroboration to establish the falsity of defendant's oath. Hawkins,

115-712.

TWO WITNESSES.-It is not necessary that the evidence should equal in weight the testimony of two witnesses, but it is sufficient if there is the testimony of one witness and corroborative circumstances sufficient to turn the scale against the oath which is charged to have been false. Peters, 107876.

Although the testimony of two witnesses is necessary to convict of perjury, yet the direct oath of one witness and proof of declarations of the prisoner inconsistent with the oath in which perjury is assigned, is sufficient. Molier, 14 (3 Dev.), 263.

The falsity of the oath must be proven by two witnesses, or by one witness and corroborative circumstances sufficient to turn the scales against the defendant's oath. Hawkins, 115–712.

Where the perjury is assigned is in swearing that he had never been indicted for being drunk, and the defendant is asked on cross-examination whether a certain person had not charged him with having delirium tremens, his answer thereto is not competent as substantive evidence. Austin, 132— 1037.

INCOMPETENT WITNESS GUILTY.-One who is an incompetent witness, upon objection being made to his competency to testify, may be convicted of perjury in testifying falsely, where objection was not made to his competency. · Molier, 12 (1 (Dev.), 263.

JURISDICTION.-A man can not be convicted of perjury in swearing before a justice to his attendance in the superior court as a witness, since the clerk only is authorized to administer such oath. Wyatt, 3 (2 Hay.), 219.

Where the jurisdiction of the court is voidable by matters de hors the record, but no defect of authority appears upon an inspection of the record of an indictment, trial and conviction, such a record can not be collaterally impeached in a prosecution for perjury for taking a false oath in the course of the trial by showing that the jurisdiction might have been ousted though it was not defeated. Ridley, 114-827.

Where the false oath was taken before a court having no jurisdiction, as where a warrant was returnable before a single magistrate when the law required two, the defendant is not guilty. Alexander, 11 (4 Hawks), 182.

THE OATH.-Where a witness who swears with uplifted hand, though not conscientiously scrupulous of swearing on the Bible, deposes falsely, he is guilty of perjury. Whisenhurst, 9 (2 Hawks), 458.

Where a witness for the state testifies that he "was present when the defendant was sworn," and that "he swore" on the trial in which the perjury is alleged to have been committed, there is no error in refusing an instruction that there was no evidence of the taking of an oath. Glisson, 93—

PERJURY.

Where the indictment alleges that defendant was sworn "on the Holy Gospels of God," a charge that the jury might convict "if he was sworn in Davis, 69-383. any manner known to the law," is erroneous.

INTENT. Where the perjury assigned is in falsely swearing on the trial of an assault and battery that a certain person struck defendant, when the proof is that he was not struck by such person but by another, it is competent for the defendant to show, in order to disprove a corrupt intent, that immediately on recovering from the unconsciousness occasioned by the blow, he had given the same account of the transaction he did in his testimony on the trial for the assault and battery. Curtis, 34 (12 Ired.), 270.

A person who takes the oath administered to an unchallenged voter to the effect that he is a “duly qualified voter," can not be convicted of perjury because at the time he had been convicted of larceny, but he might be convicted if he had taken the oath administered to challenged voters to the effect that he is “not disqualified from voting by the constitution and laws of this state." Houston, 103-383.

Although one believes the allegation to which he testifies, yet unless he has probable cause for such belief, he may be convicted of perjury. Knox, 61 (Phil. Law), 312.

AUTHORITY.-Perjury can not be committed on the trial of a motion to mark and tax a prosecutor with the costs of a criminal action in which the bill has been ignored by the grand jury, because the court has no authority to tax the prosecutor with the costs where the bill has been ignored. Gates, 107-832.

VARIANCE. An allegation that the perjury was committed on the trial of an indictment charging A and four others with an assault on B, is not supported by the production of a record which sets forth a bill of indictment charging A and five others with an assault on B. Harvell, 49 (4 Jones), 55.

Where the indictment charges false swearing before the mayor in a certain criminal proceeding against several persons, including "John Green," and the warrant introduced by the state did not contain the name of John Green, but contained the name of G. Green, the variance is fatal. Green, 100-547.

Where the perjury assigned is in giving false testimony in a bastardy proceeding against defendant, in which he testified in his own behalf, and the bill entitles the cause as constituted between the "state as plaintiff and the said J C as defendant," but the record shows that the mother was joined with the state as a party, there is no material variance, since the mother was not a necessary party to the action, and was improperly joined. Collins, 85

511.

Where the perjury assigned is in falsely swearing in a case against only one defendant, and the summons shows that the action was against two, but it is proven that a nol. pros. was entered as to the other defendant before the trial, there is no variance. Green, 100-419.

Where the indictment charges the perjury to have been committed on the trial of "Willis Fain" for larceny, and the record shows the name of "Willis Fanes," the case comes within the rule idem sonans, and there is no variance. Hare, 95-682.

Where the perjury assigned is the taking of a false oath at one term of a court in a trial between two persons, and the record shows that at that term there was no trial between the said parties, but that there was such a trial at another term, the variance is fatal. Lewis, 93-581.

Where the assignment of perjury is that defendant swore in an affidavit that he did not know that a writ had been returned against him in the above suit and the affidavit uses the word case instead of suit, the variance is immaterial. Caffey, 6 (2 Murph.), 320.