Page:The American Cyclopædia (1879) Volume XIII.djvu/315

 PERJURY 305 hardy, and in our northern gardens, while the roots usually survive, the foliage is killed unless in a sheltered place. Both these species have produced several varieties, there being those with white and double flowers, and of both kinds there are forms with variegated leaves. Though very old-fashioned, they are useful plants, and especially the variegated kinds, planted in vases, baskets, and flower stands, where their long stems can hang over the edge ; they are sometimes used as edgings to beds, and to form a carpet beneath shrubbery ; the smaller species grow well in the shade, and may be used to cover the ground where grass will not flourish. As the stems root so freely, the plants may be divided indefinitely. The herbaceous species (F herftacea), from Hun- gary, flowers later than the foregoing ; as its name indicates, its stems die down every win- ter ; in manner of growth it is similar to the others, and being less rampant it is preferred for planting on rockwork. A greenhouse spe- cies, F rosea, from the West Indies, but called Madagascar periwinkle, has erect stems, some- what woody at base, persistent veiny leaves, and large axillary, showy flowers, which are rose-colored, white, or white with a red eye ; it is an abundant bloomer, and is often used in the borders as a bedding plant. PERJURY, the crime of false swearing. He commits perjury who, under oath lawfully ad- ministered in a judicial proceeding or course of justice, wilfully gives false testimony material to the issue or point in question. The offence is thus defined at common law. In many of the United States it is particularly defined by statutes ; and these extend the definition, and in some cases make it embrace all false oaths corruptly taken, where an oath by law is re- quired or authorized, whether in judicial pro- ceedings or not. It may be said generally that wherever, under the common law of the land, an oath is required in the regular adminis- tration of justice, there the crime is possible. The offence cannot be founded on the violation of a mere oath of office. For example, an offi- cer, public or private, who neglects to execute his office in pursuance of his oath, or acts con- trary to the tenor of it, is not indictable for perjury. Nor can the common law offence consist of the violation of an oath taken in any purely extra-judicial proceeding; as a false affidavit to an account to be rendered by an administrator, or false swearing before a jus- tice of the peace, before whom no cause in any stage is pending. So, though false testimony given before a commissioner appointed by a court under the common rule is perjury, yet it is not so when given in depositions taken by consent before unauthorized persons. It mat- ters not whether the untrue evidence was given in the principal investigation of the matter in issue, or whether it was in some preliminary or incidental proceeding. Not only, therefore, may it be committed by a witness who is giving oral testimony in a trial in open court, but it may be as well in the preliminary information or complaint before a magistrate, or in state- ments made before the grand jury, or in a deposition made before a commissioner duly authorized to take it. So the examination of a poor debtor before a magistrate is a course of justice, and false swearing there is perjury. The hearing of a cause must furthermore be really, not apparently only, a judicial proceed- ing. For, if a judge who seemed to have au- thority, yet had none in fact, administered the oath, or if a suit, though properly brought, had yet in fact abated by the death of a party, and thus passed out of the court's jurisdiction, false swearing in either case is not indictable. But perjury is not excused if the pleadings were merely informal and amendable, or if the pro- ceedings were voidable but not void. It is further essential that an oath was lawfully ad- ministered. The indictment therefore usually recites that the party was in due manner sworn and took his corporal oath to speak the truth. It is enough, however, to avow that the party was duly sworn, without alleging the mode in which the oath was administered. Yet, if the allegation be of a specific mode, a variance in the proof will be fatal ; and perhaps the indict- ment would fail if it charged that the party was sworn, when in fact he only made solemn affirmation of the truth. The oath, as we have already implied, can be well administered only by competent authority, and before a court or magistrate having legal right to proceed in the cause. It suffices in the indictment to allege this competent power and authority, without setting forth the facts which constitute juris- diction. In proof of the falsity of the testi- mony, which is also an essential element of the offence, it is not requisite to recite the exact words uttered, with the same nicety as in the case of forgery or libel. It is sufficient to allege substantially what the defendant said as to the matter in question, and that he knew it to be false. The false testimony must be given wilfully. It has sometimes been held that the allegation of wilful and corrupt falsehood is well supported by evidence that the accused swore rashly to that which he did not know, and, though he believed it, yet had no proba- ble cause for believing. But the better opinion seems to be, that perjury is not committed if the party gave his testimony in accordance with his belief, no matter how carelessly or rashly that belief may have been formed. In other words, a distinct corrupt intent is essen- tial to the crime. Finally, the false testimony must be material to the point in controversy. The degree of materiality is of no importance, nor is it necessary that the false declaration immediately and directly touch the issue; it suffices if it remotely or collaterally affect it. Perjury then may be committed, if the testi- mony tend to increase or diminish the damages or punishment, or if it concern the credibility of the witness himself, or of any other witness in the case. A false answer to a question put