§ 3069. Storing explosives.-It has been held that the mere keeping of a large quantity of gunpowder or other explosives on one's premises, or even near a public place, does not necessarily constitute a public nuisance per se. But it may constitute a public nuisance if the explosives are so kept and in such a place and under such circumstances as to endanger life. There are comparatively few decisions upon the subject, however, in criminal cases, and nothing peculiar in the application in such cases of rules of evidence. The questions generally arise in civil actions for damages or in actions or prosecutions under municipal ordinances.65

63 Kinney v. Koopman, 116 Ala. 310, 22 So. 593, 67 Am. St. 119, and note; Dumesnil v. Dupont, 18 B. Mon. (Ky.) 800, 68 Am. Dec. 750.

04 Reg. v. Lister, 7 Cox Cr. Cas. 342; People v. Sands, 1 Johns. (N. Y.) 78, 3 Am. Dec. 296; Bradley v. People, 56 Barb. (N. Y.) 72; State v. Paggett, 8 Wash. 579, 36 Pac. 487;

see also, Heeg v. Licht, 80 N. Y. 579; Rudder v. Koopman, 116 Ala. 332, 22 So. 601; Wilson v. Phoenix Powder Co., 40 W. Va. 413, 21 S. E. 1035, 52 Am. St. 890; Wier's Appeal, 74 Pa. St. 230.

es See, 67 Am. St. 134, note; 86 Am. St. 521, note, and, 38 L. R. A. 306, note.

Sec.

CHAPTER CXLVIII.

PERJURY.

Sec.

3070. Definition-Essential elements. 3080. Materiality-Collateral matter.

3071. Burden of proof.

3072. Presumptions.

3073. Questions of law or fact. 3074. Oath and proceedings.

3075. Jurisdiction of tribunal-Authority of officer.

3076. Jurisdiction of tribunal-Recent cases.

3077. Falsity.

3078. Motive or intent. 3079. Materiality.

3081. Materiality-How shown.

3082. Record of former proceedings.

3083. Best evidence.

3084. Stenographer's notes.

3085. Parol evidence.
3086. Res gestae.

3087. Circumstantial evidence.

3088. Admissions and confessions. 3089. Corroboration.

3090. Defenses.

3091. Variance.

1

§ 3070. Definition-Essential elements.-Perjury, except where the statute otherwise expressly or impliedly defines it, may be defined as a corrupt, wilful and false oath taken in a judicial proceeding, before some court or officer having authority to administer oaths, concerning a material matter involved in the proceedings. To maintain a prosecution for perjury, it is said, it must appear that the oath was false, the intention wilful, the proceedings judicial, the party lawfully sworn, the assertion absolute, and the falsehood material to the matter in question.2 The statutes of many of the states provide that one may be prosecuted for perjury who takes a lawful oath or affirmation in any matter in which, by law, an oath or affirmation may be required and who, upon such oath or affirmation, swears or affirms wilfully, corruptly, and falsely touching a matter material

terial to the point in issue, whether he believed it or not." Commonwealth v. Powell, 2 Metc. (Ky.) 10; see also, 1 Hawkins P. C., chap. 69, § 1; 2 Russell Crimes (5th Am. ed.) 596; 4 Blackstone Comm. 137.

1 Hood v. State, 44 Ala. 81; Miller v. State, 15 Fla. 577. At common law perjury was defined as the "taking of a wilful false oath by one who being lawfully sworn by a competent court to depose the truth in any judicial proceeding, swears absolutely and falsely, in a matter ma- L. J. 163.

2 Commonwealth v. Kuntz, 4 Pa.

3

to the point in question. In some jurisdictions false swearing, where it would not be perjury, is also made a crime, but it has been held that where it is made a separate and distinct crime by statute, the prosecution must be based upon such statute. Modern statutes in many of the states have, as above stated, enlarged the common-law offense of perjury, and it is impossible to give an exact definition and statement of the essential elements under every statute, yet the different statutes bear, in most respects, a close resemblance. The definition and statement of the essential elements given by Mr. Hughes will be found to be applicable in most jurisdictions, and we can not do better than to quote from his work as follows:5 "Perjury consists in wilfully and falsely swearing to a fact material to the point in issue before a court or tribunal having legal authority to inquire into the cause or matter investigated. To sustain a charge of perjury the evidence must prove the following essential elements: (1) The authority of the officer to administer the oath; (2) the occasion of administering it; (3) the taking of the oath by the accused; (4) the substance of the oath; (5) the material matter sworn to; (6) the introductory averments; (7) the falsity of the matter sworn to; and (8) the corrupt intention of the accused. To commit a perjury a person must wilfully, corruptly and falsely, swear or affirm. The false assertion made by the witness under oath must be known to such witness to be false and must be intended by him or her to mislead the court or jury."s

'See, for instance, Burns' Ann. Ind. Stat., § 2093; State v. Smith, 63 Vt. 201, 22 Atl. 604; R. L. Vt., § 4263; Langford v. State, 9 Tex. App. 283; see, Act Cong. March 3, 1857, § 5 (11 Stat. 250).

'State v. Runyan, 130 Ind. 208, 29 N. E. 779; see also, Commonwealth v. Maynard, 91 Ky. 131, 15 S. W. 52; State v. Carpenter, 164 Mo. 588, 65 S. W. 255; Steber v. State, 23 Tex. App. 176, 4 S. W. 880. B 'Hughes Cr. Law & Proc., § 1582.

note; State v. Mace, 76 Me. 64. 5 Am. Cr. R. 588; Hood v. State, 44 Ala. 81, 86; see also, 85 Am. Dec. 488, note.

72 Roscoe Cr. Ev., 836, 1045.

8

Coyne v. People, 124 Ill. 24, 14 N. E. 668, 7 Am. St. 324; Johnson v. People, 94 Ill. 505; People v. German, 110 Mich. 244, 68 N. W. 150; see, State v. Higgins, 124 Mo. 640, 28 S. W. 178; People v. Ross, 103 Cal. 425, 37 Pac. 379; Bell v. Senneff, 83 Ill. 122; People v. Willey, 2 Park. Cr. Cas. (N. Y.) 19; Thomas V. State, 71 Ga. 252; State v. Cruikshank, 6 Blackf. (Ind.) 62; Miller v. State, 15 Fla. 577; Green v. State, 41 Ala. 419; Williams v. Common

§ 3071. Burden of proof.—The burden is upon the prosecution to establish the defendant's guilt beyond a reasonable doubt." In order to do this it is necessary, in general, to prove the essential elements of the crime as enumerated in the last preceding section. Thus, it has been held that the burden rests upon the state in a prosecution for perjury to show that the oath was false,1o the intention wilful,11 the proceedings judicial,12 the party lawfully sworn,13 the assertion absolute1 and the falsehood material to the matter in question.15 The burden is upon the state, however, to prove only so much of the testimony of the witness false as relates to the particular material fact on which the perjury is assigned,15* but under no circumstances, it is said, will the materiality be presumed.18 It has been held that when the prosecution has shown a material part of the defendant's statement under oath to be false, a prima facie case is established, and the burden of proof rests upon the defendant to show that his false oath was occasioned by surprise, inadvertency, or mistake, and was not made through a corrupt motive.17 But where the defendant is unable to read or write, in a prosecution for perjury for signing a false affidavit, the state must first show that the defendant had

wealth, 91 Pa. St. 493; Davidson v. State, 22 Tex. App. 372, 3 S. W. 662; 1 Hawkins P. C. 429, § 2.

"Galloway v. State, 29 Ind. 442; People v. German, 110 Mich. 244, 68 N. W. 150; State v. Fannon, 158 Mo. 149, 59 S. W. 75; Rex v. De Beauvoir, 7 Car. & P. 17, 32 E. C. L. 477.

10 Heflin v. State, 88 Ga. 151, 14 S. E. 112, 30 Am. St. 147; Commonwealth v. Kuntz, 4 Pa. L. J. 163; State v. Chamberlin, 30 Vt. 559; Anderson v. State, 24 Tex. App. 705, 7 S. W. 40; Littlefield v. State, 24 Tex. App. 167, 5 S. W. 650.

"Mason v. State, 55 Ark. 529, 18 S. W. 827; Foster v. State, 32 Tex. Cr. App. 39, 22 S. W. 21; People v. Macard, 109 Mich. 623, 67 N. W. 968.

12 King v. State, 32 Tex. Cr. App. 463, 24 S. W. 514; Keator v. People, 32 Mich. 484.

13 Sloan v. State, 71 Miss. 459, 14 So. 262; Dempsey v. People, 20 Hun

VOL. 4 ELLIOTT Ev.-25

(N. Y.) 261; State v. Mace, 86 N. Car. 668.

14 Mason v. State, 55 Ark. 529, 18 S. W. 827; Commonwealth v. Kuntz, 4 Pa. L. J. 163.

15 State v. Aikens, 32 Iowa 403; Nelson v. State, 32 Ark. 192; Lawrence v. State, 2 Tex. App. 479; Rich v. United States, 1 Okla. 354, 33 Pac. 804.

15* United States v. Erskine, 4 Cranch (U. S.) 299, 25 Fed. Cas. No. 15057; Dodge v. State, 24 N. J. L. 455; Hutcherson v. State, 33 Tex. Cr. App. 67, 24 S. W. 908; 1 Bishop Cr. Proc., § 934.

16 Nelson v. State, 32 Ark. 192; that the materiality must be shown, see also, Commonwealth v. Pollard, 12 Metc. (Mass.) 225; State v. Aikens, 32 Iowa 403; Wood v. People, 59 N. Y. 117; Garrett v. State, 37 Tex. Cr. App. 198, 38 S. W. 1017.

17 State v. Chamberlin, 30 Vt. 559.

an understanding of the statement contained in the affidavit.18 Making a mark at the end of an affidavit after it is read to affiant where the affidavit contains a preface and conclusion, both stating that it is sworn to, and where the officer signing the jurat says to the affiant, "if you swear to this statement put your mark here," has been held to be an oath sufficient on which to assign perjury.19

§ 3072. Presumptions.-Where it is affirmatively shown in a prosecution for perjury that an oath was administered in open court by an acting officer of the class having authority to administer such oaths, the presumption is that it was rightfully done,20 but in the absence of any evidence by the prosecution, there is no presumption that an oath was administered or that it was correctly done.21 There is no legal presumption in favor of the prosecution that the false statement was material,22 but on the other hand, this must be affirmatively established by the state.28 And it may, perhaps, be said that no presumption favors the prosecution as to any of the allegations necessarily alleged, for they must be affirmatively proved by the state. That is, the state must at least produce some evidence upon the subject.

§ 3073. Questions of law or fact.-Questions of fact are for the jury in perjury cases as in other criminal cases. But the question as to whether the alleged false testimony or oath upon which perjury is assigned is material within the rule in regard to perjury is generally held to be a question for the court.25 So, the question as

18 Hernandez v. State, 18 Tex. App. Vt. 559; Sloan v. State, 71 Miss. 459, 134, 51 Am. R. 295. 14 So. 262.

19 United States v. Mallard, 40 Fed. 151, 5 L. R. A. 816.

20 State v. Mace, 86 N. Car. 668; State v. Hascall, 6 N. H. 352; Staight v. State, 39 Ohio St. 496; Reg. v. Roberts, 38 L. T. N. S. 690.

Sloan v. State, 71 Miss. 459, 14 So. 262.

22 Nelson v. State, 32 Ark. 192. 23 Commonwealth v. Kuntz, 4 Pa. L. J. 163; State v. Chamberlin, 30 Vt. 559; State v. Aikens, 32 Iowa 403.

24 Commonwealth v. Kuntz, 4 Pa. L. J. 163; State v. Chamberlin, 30

25 State v. Clough, 111 Iowa 714, 83 N. W. 727; State v. Caywood, 96 Iowa 367, 65 N. W. 385; State v. Swafford, 98 Iowa 362, 67 N. W. 284; Gordon v. State, 48 N. J. L. 611, 7 Atl. 476; United States v. Singleton, 54 Fed. 488; State v. Faulkner, 175 Mo 546, 75 S. W. 116; State v. Williams, 30 Mo. 364; Peters v. United States, 2 Okla. 138, 37 Pac. 1081; People v. Lem You, 97 Cal. 224, 32 Pac. 11; Hanscom v. State, 93 Wis. 273, 67 N. W. 419; State v. Park, 57 Kans. 431, 46 Pac. 713; Davidson v. State, 22 Tex. App. 372, 3 S. W. 662.