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2. Before a court, &c. of competent jurisdiction. The statute 23 G. 2. c. 11. expressly directs that it shall be sufficient to state by what court or before whom the oath was taken, averring such court or person or persons to have competent authority to administer the same, without setting forth the commission or authority of the court or person or persons.
And, therefore, to set out the authority of the court would be highly improper, for if the indictment profess to set it out and fail, the defect will be fatal (2).
It is sufficient to say, "he the said A. B. &c. then and there having competent power and authority to administer," &c. (a).
In the case of the King y. Alford (b), the defendant was indicted for perjury in the course of a cause tried at the assizes.
The caption of the indictment mentioned the names of both the justices named in the commission, but the defendant was alleged to have been sworn before one only. Baron Eyre doubted whether it should not have been alleged that the oath was taken before both the justices mentioned in the commission. It was also doubted whether there was not a variance, since the nisi prius record stated, in the usual form, that the trial was before the justices. But the judges were unanimously of opinion, that the conviction was proper.
3. That the matter 'sworn to was material.
Although it is no longer necessary to set out the proceedings at length, but sufficient to set forth the substance
(2) Per Lord Kenyon, C. J.
R. v. Dowlin, 5 T. R. 317.
(a) R. v. Jole, Trem. P. C.
(b) Leach, 179.
of the offence, it is necessary to shew that the point falsely sworn to, was material to the question depending (c); for if it were irrelevant, though false, no indictment can be founded upon it (d). And therefore in the case of the King v. M'Keron, the indictment was holden to be vicious, for the want of an averment that the question was material (e). But it seems to be sufficient to aver, that it then and there became and was a material question upon the trial of the said cause, whether, &c. without shewing what issue was joined, or any other previous circumstances or evidence in the cause (f). And in stating the question, which is averred to be material, it seems to be proper to mention those circumstances which must afterwards be connected with the terms of the defendant's oath, in order to assign perjury upon that meaning (g), Thus it may be stated, that it then and there became and was a material question, whether A. B. was at N. in the county of D. at such a time; and then, after setting forth the oath of the defendant, that A. B. was at N. meaning the said N. in the county of D.; it may be assigned, for perjury, that the said A. B. was not at N. in the county of D. at the time specified (h).
But where such facts and circumstances are set out, as shew plainly that the question was material to the issue, the express averment does not appear to be necessary, and is rarely to be found in the older precedents,
(c) Per Lord Mansfield, R, v. Aylett, 1 T. R. 64. R. v. M'Keron, 5 T. R. 318. Louis's ease, Cro. Eliz. 148.
the judges, on the point reserved. 5 T, R, 318,
(f) 5 T. R. 318.
(g) R. v. Aylett, 1 T. R.
(d) R. v. Griepe, Ld. Ray. 64. obj. 2. 256.
(e) Coram Buller, J. Lancaster, Lent Ass. 1792, and before
(h) See below, and Ld. Ray.
where the facts are described at length (i). And therefore the averment may be omitted, where the perjury is assigned upon an affidavit on a question before the court, where the materiality appears from setting forth the contents of all the affidavits relating to the subject upon the record (k).
4. The substance of the matter sworn must be set forth. It must be alleged that the defendant was upon oath ; and for this purpose it is sufficient to aver, generally, that he was duly sworn to speak the truth, of and concerning, &c.; and if it be averred that he was sworn upon the gospels, and it turn out that he was sworn in some other manner, according to a particular custom, and not upon the gospels, the variance would be fatal (1), though it would be no variance if he were sworn both ways (m).
In setting forth the matter sworn, it is not essential to profess the same particularity as is necessary in indictments for forgery and libel, which must assume to set out an exact copy. But it seems to be sufficient to say, that the defendant, upon the trial of the said cause, &c. did falsely say, depose, and swear, that, &c. or to the effect following, that, &c. (n); or where the evidence is given before a jury or a magistrate ore tenus, to aver that the defendant falsely, maliciously, wilfully, and corruptly said, deposed, and swore, that, &c. (o). Where the perjury is assigned upon an affidavit, it is usual to allege, deposed and
(i) See the Entries in Tremaine, P. C. 139, &c. and Co. Ent. 166, 367.
Crossley, 7 T. R. 315.
(1) R. v. M'Carther, Peake, 155.
(n) See the Ind. in R. v.
(k) R. v. Crossley, 7 T. R. Aylett, 1 T. R. 64.
(0) Trem. P. C. 139.
swore in writing as follows: that is to say (p), &c. or falsely and corruptly said, swore, and deposed, that (q), &c: and then the affidavit must be correctly set out, and a variance which altered the sense would be fatal (r). But in some of the older precedents, both the interrogatories and the answers on which the perjury is assigned, are set out in English (s).
In an indictment for perjury in an affidavit to hold to bail, it has been held to be unnecessary to insert the jurat (t). If the jurat be set forth, and it thereby appear that the affidavit was sworn in another county, the variance will not be (u) fatal.
It frequently is necessary, with a view to the subsequent assignment of perjury upon the defendant's statement, to point the defendant's meaning, (when it is too generally expressed), to particular facts and circumstances; this is to be effected by means of an innuendo, which may be defined to be,
An averment which explains the defendant's meaning (x), by reference to antecedent matter (y). It signifies no more than the words" id est scilicet," or "meaning," as explanatory of a subject matter sufficiently expressed before, as such a one, meaning A. B. or such a subject, meaning the subject in question (2),
And, since this is the proper office of an innuendo, if it go beyond it, and materially enlarge the sense of the words which it is intended to explain, by introducing new matter, it will vitiate the indictment or declaration in which it is used. Thus, the words, he has burnt my barn, cannot, by the mere aid of an innuendo, be extended to mean "his barn full of corn," for that is not an explanation of what was said before, but an addition to it (a).
In Griepes's case (b), it appeared that Mr .Strode, upon the trial of a replevin cause, proved the execution of certain indentures of lease and release, bearing date the 15th and 16th of July, 1681, at Albemarle-house, in the parish of St. Martin in the Fields, Westminster. Griepe was a witness upon this trial, and the information, charging him with perjury, alleged to have been committed on that occasion, averred, that he swore that Mr. Strode, meaning the said witness, was commorant all the middle of the month of July, innuendo of the year 1681, at Newnham, innuendo, Newnham in the county of Devon; and assigned, by way of breach, that the said E. Strode was not at Newnham, in the said month of July. The defendant was convicted, and upon motion in arrest of judgment, the judges, after giving the case great attention, delivered their opinions very fully. Lord Holt, C. J. differed from his brethren in some respects, but upon these points they all agreed, 1. that the information would be vicious without an innuendo (c); 2dly, that the innuendo was ill, because
(a) Ib. and 4 Co. 17. (b) Lord Ray. 256. (c) Rokeby, Turton, and Eyre, Js.; because, without shewing where Newnham was, it would not appear that the
matter sworn was material to the issue. Lord Holt, C. J. considered the question to be material to the issue, wheresoever Newnham was, but since, without an innuendo, it was