Irregulari

ties in the

The definition of perjury cannot properly include the violation of an oath of office by misconduct in the office. The official oath serves a valuable purpose in giving point and depth to the sense of the public duty which every person entrusted with the discharge of official responsibilities owes to the community. But it cannot be a convenient mode of punishing official misconduct to treat it as involving a breach of the oath of office, punishable as perjury. The act which violates the official duty should be declared criminal, and the punishment should be affixed to the act itself. The case covered by the provisions of 1 Rev. Stat., 199, 200, §§ 14, 15, which direct that certain surveyors shall take and file the oath required by the constitution—i. e., an oath that they will faithfully discharge the duties of the office-and declare that in case any surveyor shall willfully and knowingly make a false return of the survey by him made, &c., he shall be deemed guilty of perjury — is treated by the commissioners upon this principle. It may be truly said that making a false return is a violation of the duties of the office, and so is a breach of the official oath, yet the commissioners do not extend the penalty of perjury to a false report made in violation of an official oath merely; but reserve that species of offense to be covered by a section declaring it a misdemeanor for any official surveyor to make a report knowing it to be false.

$153. It is no defense to a prosecution for perjury

mode of ad- that the oath was administered or taken in an irregu

ministering

oaths.

lar manner.

Two classes of cases are important to be considered one class is, where an oath is administered in an irregular manner, but the person taking it supposes at the time that all the formalities of law are being complied with. Such were the circumstances in People v. Cook (4 Seld., 67), where challenged voters were sworn upon a copy of Watts' Psalms and Hymns; the book being supposed to be the Bible. As to these cases, the decision in People v. Cook is, that the oath is valid, and the party is as amenable to the consequences of perjury as if it had been administered in strict conformity to the statute. Another class of cases is, where the person taking the oath evades some formality of the oath with intent to escape its obligation; as where he kisses his thumb instead of the book. In these cases his fraud should not be permitted to secure him against punishment. The section in the text therefore prescribes the same rule for both classes.

tency of

defense for

S 154. It is no defense to a prosecution for perjury Incompethat the accused was not competent to give the testi- witness no mony, deposition or certificate of which falsehood is perjury. alleged. It is sufficient that he actually was received to give such testimony or make such deposition or certificate.

See Van Steenberg v. Kortz, 10 Johns., 167.

knowledge

f

ality of his not necessary.

testimony

§ 155. It is no defense to a prosecution for perjury Witness that the accused did not know the materiality of the false statement made by him; or that it did not in fact affect the proceeding in or for which it was made. It is sufficient that it was material, and might have been used to affect such proceeding.

$156. The making of a deposition or certificate is deemed to be complete, within the provisions of this chapter, from the time when it is delivered by the accused to any other person with intent that it be uttered or published as true.

$157. An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false.

See, in support of the rule prescribed in this section, People v. McKinney, 3 Park. Cr., 511; Bennett v. Judson, 21 N. Y., 238; Commonwealth v. Cornish, 6 Binn., 249; Steinman v. McWilliams, 6 Penn. St., 170; and, opposed to it, United States v. Shellmire, Baldw., 370.

Making of &c., when complete.

deposition,

deemed

Statement which one

of that

does not know to be true.

$158. Perjury is punishable by imprisonment in a Punishstate prison as follows:

1. When committed on the trial of an indictment for felony, by imprisonment not less than ten years; 2. When committed on any other trial or proceeding in a court of justice, by imprisonment for not more than ten years;

3. In all other cases by imprisonment not more than five years.

2 Rev. Stat., 681, § 2, modified. The section of the Revised Statutes cited, prescribed imprisonment for not less than ten years as the punishment for perjury com

ment of perjury.

Summary committal of wit

nesses who have committed perjury.

Witnesses

necessary

perjury may be bound

over to

appear.

mitted on the trial of an indictment for felony, and imprisonment for not more than ten years for perjury committed in any other case. As the commissioners have reported a definition of perjury which may embrace some cases of false swearing which were not punishable under the definition given in the Revised Statutes; they have thought it proper to restrict the punishment which may be inflicted for the new offenses, within somewhat narrower limits. They, therefore, prescribe imprisonment for not more than ten years for perjury committed before a court of justice, except upon trial for felony, and impri sonment for not more than five years for all other cases.

$159. Whenever it appears probable to any court of record that any person who has testified in any action or proceeding in such court has committed perjury, such court may immediately commit such person by an order or process for that purpose to prison, or take a recognizance with sureties for his appearing and answering to an indictment for perjury.

Compare 2 Rev. Stat., 681, § 5.

$160. Such court shall thereupon bind over the to prove the witnesses to establish such perjury to appear at the proper court to testify before the grand jury, and upon the trial in case an indictment is found for such perjury; and shall also cause immediate notice of such commitment or recognizance, with the names of the witnesses so bound over, to be given to the district attorney of the county.

Documents necessary

to prove

such per

2 Rev. Stat., 681, § 6.

S 161. If, upon the hearing of such action or proceeding in which such perjury has probably been

der may be committed, any papers or documents produced by

detained.

either party shall be deemed necessary to be used on the prosecution for such perjury, the court may by order detain such papers or documents from the party producing them, and direct them to be delivered to the district attorney.

2 Rev. Stat., 682, § 7.

tion of

$162. Every person who willfully procures another Suborna. person to commit any perjury is guilty of subornation perjury of perjury.

2 Rev. Stat., 681, § 3.

defined.

of suborna

$ 163. Every person guilty of subornation of perjury Punishment is punishable in the same manner as he would be if tion. personally guilty of the perjury so procured.

2 Rev. Stat., 681, § 4.

perjury declared incorapetent

ness.

$164. No person who has been convicted of perjury, Convict of or of subornation of perjury, shall thereafter be received as a witness in any action, proceeding or mat- wit ter whatever upon his own behalf; nor in any action or proceeding between adverse parties, against any person who shall object thereto, until the judgment against him has been reversed. But where such person has been actually received as a witness contrary to the provisions of this section, his incompetency shall not prejudice the rights, innocently acquired, of any other person claiming under the proceeding in which such person was so received.

Modification of the existing rule.-As the statute defining the powers of the commissioners of the Code expressly excludes from their consideration the law of evidence; and as the commissioners of practice and pleading have already (Rep. Code Civ. Pro., § 1708) recommended the adoption of a general rule that those who have been convicted of crime shall not be excluded as witnesses, the commissioners would not suggest the above section, were the rule which it embodies a new one in our jurisprudence. But a rule even broader than that here stated, has been so long established, and seems so just and reasonable an exception to the general principle enunciated in the Code of Civil Procedure, that it appears proper to recall it to the attention of the legislature.

The section in the text is suggested as a substitute for the provision of 2 Rev. Stat., 681, § 1, which forbade a convicted perjurer from being received as a witness "in any matter or cause whatever." This latter language seems broad enough to disqualify a convicted perjurer from proving the execution of a deed, or testifying upon any similar ex parte proceeding. It is obvious that the rule of exclusion, if pressed to this extent, in cases where the interests of third persons are affected, cannot fail to result in injustice; inasmuch as the only method of enforcing it, where the

testimony is taken ex parte, is by declaring the proceeding taken, to be null and void for the incompetency of the witness afterwards proved. In the case of a convict produced as a witness by another person, the party who produces him cannot be regarded as any more chargeable with his previous perjury, or even with notice of it, than the person to be affected by his testimony. The rule should therefore be limited to contested proceedings, and the party against whom the convict is called, should be required to interpose objection, seasonably, to the examination. Where the convict comes forward as a witness in his own behalf — e. g., to verify a petition for his own discharge in insolvency, the above reason for limiting the rule does not apply.

Constitutionality of the rule.-The commissioners have noticed that the language in which the pardoning power vested in the Governor is defined by the constitution of 1846, suggests a possible objection to the rule of disqualification, in so far as it applies to exclude a convict of perjury who has been pardoned. By the Revised Statutes, such persou remains disqualified notwithstanding the pardon; and this has been the familiar rule in this State from the earliest period. The provision is borrowed from the Stat., 5 Eliz., ch. 9. It was enacted in this State in 1788 (2 Greenl. L., 36, § 1; 2 Jones & V. 207, § 1), and was reenacted in 1801 (1 Kent & R., 313, § 1; 1 Webst. & S., 313, § 1; 1 Laws of 1813, 171, § 1), and again in the Revised Statutes; and the commissioners are not aware that it was ever questioned as an unconstitutional restriction upon the pardoning power. The constitution of 1846, however, confers the pardoning power upon the Governor in these words: "The Governor shall have the power to grant reprieves, commutations and pardons after conviction for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to such regulation as may be provided by low relative to the manner of applying for pardons" (art. IV, S 5). The words in italic are new in the constitution, though the legislature conferred upon the Governor the power to impose conditions, in substantially the same language, by a very early statute. (Act of March 12, 1794; 3 Greenl., 113; 1 Kent & R., 158; 1 Laws of 1813, 126; 2 Rev. Stat., 745, § 21.) And the objection anticipated is that these words exclude any power on the part of the legis lature to impose any restriction or limitation upon pardons except such as relates to the manner of applying for them, and that the rule which disqualifies a convicted perjurer, notwithstanding pardon, is in effect a restriction or limitation upon the effect of the pardon.

The commissioners are of opinion, however, that in