steamboats, steamships and other vessels, are made felonies. As the act is lengthy it is not deemed necessary to insert its provisions here. XXXII. PRODUCING PRETENDED HEIR. Every person who shall fraudulently produce an infant, falsely, pretending it to have been born of parents whose child would be entitled to a share of any personal estate or to inherit any real estate, with the intent of intercepting the inheritance of any such real estate, or the distribution of any such personal property from any person lawfully entitled thereto, is guilty of a felony.1 This offence divides itself into the following questions: First, Was it a fraudulent production of the child; Second, Did the defendant falsely pretend that it was born of certain parents; Third, Would a child of the parents of whom the defendant pretended it was born be entitled to inherit; Fourth, Was it the defendant's intention by the fraudulent production to intercept the inheritance.2 XXXIII. POISONING. The following sections of our statute declare it to be felony to administer or expose poison in the cases therein mentioned. Of all the different modes by which death is effected, that by poison, willfully administered, may be considered as the most detestable; because it can of all others be least prevented by courage or forethought. The act itself necessarily implies the most cool and deliberate malice in the prepetrator, and no provocation is allowed to justify it. On account of its singular enormity, the English statute formerly made it treason, but it was subsequently made willful murder. The perpetrators of murder by poison were anciently punished more severely than the accomplishment of death by any other means; one sentence was to be boiled to death.3 (a) Administering Poison to Human Beings.-Every person who shall be convicted of having administered, or having caused and procured to be administered any poison to any other human being, with intent to kill such human being, and which shall 12 R. S., 676, § 53; 3 Park., 520. 2 Peo. v. Cunningham, 3 Park., 527. 31 East. P. C., 225. have been actually taken by such being, whereof death shall not ensue, shall be punished by imprisonment in a State prison.1 Where, upon an indictment for poisoning, it was proved that the prisoner administered two berries of the colocus indicus to a child of nine years old, with intent to murder it, it was proved that the kernel, which is a strong narcotic poison, is inclosed in a strong shell or pod, very difficult to break, which is innoxious; and that the digestive powers of a child of that age would not break or affect the pod, so as to allow the kernel to act; but that it would either be ejected from the stomach, or pass through such a child without harm, and in fact such was the case; one berry was thrown up and the other passed through without injury to the child. It was objected that, under these circumstances, the berries could not be deemed poison; for being in the pods they could not effect injury to any such child; the prisoner was convicted, and the question being reserved for the criminal appeal court, the judges held it sufficient that these berries were poison, and that they were administered with intent to kill, to bring the case within the statute and that the conviction was right.2 (b) Exposing Poison to Cattle, etc.-Every person who shall willfully administer any poison to any horse, cattle or sheep, or shall maliciously expose any poisonous substance, with intent that the same should be taken or swallowed by any horse, cattle, or sheep shall, upon conviction, be punished by imprisonment in a State prison not exceeding three years, or in a county jail not exceeding one year, or by a fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment.3 (c) Poisoning Food, Springs, etc.-Every person who shall mingle any poison with any food, drink or medicine, with intent to kill or injure any human being, or who shall willfully poison any spring, well or reservoir of water, is guilty of a felony.+ (d) Administered by Physicians.-The statute further declares that if any physician, while in a state of intoxication, shall, without a design to effect death, administer any poison, drug or medicine, or do any other act to another person which shall pro 2 R. S., 665, § 39. R. v. Claderoy, 1 Car. & K., 176; 1 Arch. Cr. P., 258. 2 R. S., 689, § 16. duce the death of such other, he shall be deemed guilty of manslaughter.1 XXXIV. PERJURY. Lord COKE defined perjury at the common law to be a crime committed when a lawful oath is administered in some judicial proceeding to a person who swears willfully, absolutely and falsely in a matter material to the issue or point in question." But by our Revised Statutes the offence is defined to be the willful and corrupt swearing, testifying or affirming falsely to any material matter upon any oath, affirmation or declaration legally administered. 1. In any matter, cause or proceeding depending in any court of law or equity, or before any officer thereof. 2. In any case where an oath or affirmation is required by law or is necessary for the prosecution or defence of any private right or for the ends of public justice. 3. In any matter or proceeding before any tribunal or officer created by the constitution or by law, or where any oath may be lawfully required by any judicial, executive or administrative officer.3 1. Of the Oath. It is immaterial in what form the oath is administered, provided the party at the time professes such form to be binding on his conscience.4 An oath administered by mistake, e. g., upon Watts' Psalms and Hymns instead of upon the Gospel, is a valid oath. If the party taking it makes no objection at the time, he is deemed to have assented to the particular form adopted, and is liable to perjury as if the oath had been regularly administered. of an affirmation is the same as that of an oath. 1 The legal effect "Misde 1 2 R. S., 662, § 17. For other cases of administering poison, see meanors," post.; for history of the art of poisoning, see 1 Beekman's History of Inventions, p. 74, et seq.; for characteristics and symptoms of different poisons, see Wharton & Ste'le's Medical Jurisprudence. Com. v. Knight, 12 Mass., 274; Campbell v. The Peo., 8 Wend., 636; 2 Hawks., 458; 2 Rob., 795; 1 Rob., 729; 2 Murphy, 320; 3 Id., 153. 2. Before a Person Authorized to Administer an Oath. The oath must be taken before a person having competent. authority to administer it, otherwise the false statement would be no offence.1 Therefore, no false swearing before individuals acting merely in a private capacity, or before officers who have no legal jurisdiction to administer the particular oath in question, will amount to the offence of perjury. And although the officer stands colorably in the situation which confers a power of receiving an oath on such an occasion, if in fact he is not duly appointed the proceedings will be of no avail. For though it is sufficient prima facie to show the ostensible capacity in which he acted when the oath was taken, the presumption may be rebutted by other evidence, and the defendant if he succeed will be entitled to an acquittal.4 5 Perjury cannot be committed by taking a false oath in a case before a justice of the peace of which the justice has not jurisdiction. Perjury may be assigned upon a false oath taken before a grand jury. No indictment for perjury will lie in one State for a false oath administered in another. A judge in New York has no authority to administer an oath in Canada." The general rule as to jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so, and on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged. A mere voluntary oath is not perjury. Thus, perjury cannot be assigned of a false oath to a protest taken before a notary public, as part of the preliminary proofs in case of a marine loss. The oath in such a case is a voluntary and extra-judicial proceeding.9 So no breach of an oath made in a mere private concern, as in entering into a contract, however malicious, is an indictable 1 Hawk., ch. 59, § 4. 3 Inst., 166. Id.; 3 Camp., 432. 3 Camp., 432. State v. Alexander, 4 Hawks., 182; State v. Furlong, 26 Maine, 69. State v. Fassett, 16 Conn., 457; 2 R. S., 725, § 31. Jackson v. Humphrey, 1 John., 167. 1 Saund., 74, Bac. Abr., tit. Pleas, E. 1. Peo. v. Travis, 4 Park. Cr. R., 213. offence.1 Perjury can only be assigned of testimony given before a competent tribunal or officer, and the defendant may show that the alleged tribunal or officer was neither de facto or de jure such officer.2 Where the court is not regularly constituted, as where a judge of the county court sits in the court of sessions in a case not provided by law, an oath is not lawful, and the violation is not perjury.3 3. The Oath must be False. With respect to the falsity of the oath, it should be observed that it has not been considered to be material whether the fact which is sworn be in itself true or false, for however the thing sworn may happen to prove agreeable to the truth; yet if it were not known to be so by him who swears to it, his offence is altogether as great as if it had been false, inasmuch as he willfully swears that he knows a thing to be true which at the same time he knows nothing of, and impudently endeavors to induce those before whom he swears to proceed upon the credit of a deposition which any stranger might make as well as he. Thus, where a person testifies to what is true in fact, but at the time he testifies does not know it to be true, and has no knowledge on the subject, if such testimony be material and the act willfully committed, such person is guilty of perjury. It is enough, if the oath was false in one particular point, material." 4. Of the Materiality of the Statement. As a general rule, it may be laid down that the statement must be in some point material to the question in dispute. For if the subject-matter is entirely foreign to the purpose, not tending either to extenuate or increase the damages or the guilt, nor likely to induce the jury to give a more easy credit to the substantial part of the evidence, the party will not be liable to indictment. It was said that, though a man swear falsely, yet if it be in a 13 Inst., 166; 11 Co. Rep., 98. 2 Peo. v. Albertson, 8 How. Pr., 363. Peo. v. Tracy, 9 Wend., 265. * 2 Russ on Cr., 597; 1 Hawk., ch. 69, § 6. 7 き * Peo. v. McKinney, 3 Park. Cr. R., 510. • Tomlinson's Case, 4 City H. Rec., 125. 4 Bla. Com., 137; 3 Inst., 167; 1 Hawk. ch. 69, § 8. * 1 Hawk., ch. 69, § 8. See 12 Mass. 274. |