testimony, may combine to establish the charge of perjury; as they may combine, together unaided by oral proof, except the proof of their authenticity, to prove any other fact connected with the declarations of persons or business of human life. That principle is, that circumstances necessarily make up a part of the proofs of human transactions; that such as have been reduced to writing in unequivocal terms, when the writing has been proved to be authentic, cannot be made more certain by evidence aliunde; and that such as have not been reduced to writing, whether they relate to the declarations or conduct of men, can only be proved by oral testimony. If it be true, then, and it is so, that the rule of a single witness, being insufficient to prove perjury rests upon the law of a presumptive equality of credit between persons, or upon what Starkie terms, the apprehension that it would be unsafe to convict in a case where there is merely the oath of one man to be weighed against that of another; satisfy the equal claim to belief, or remove the apprehension, by concurring written proofs, which existed, and are proved to have been in the knowledge of the person charged with the perjury when it was committed, especially if such written proofs came from himself, and are facts which he must have known, because they were his own acts; and the reason for the rule ceases. In what cases, then, will the rule not apply? Or in what cases may a living witness to the corpus delicti of a defendant be dispensed with, and documentary or written. testimony be relied upon to convict? We answer, to all such where a person is charged with a perjury, directly disproved by documentary or written testimony springing from himself, with circumstances showing the corrupt intent. In cases where the perjury charged is contradicted by a public record, proved to have been well known to the defendant when he took the oath; the oath only being proved to have been taken. In cases where a party is charged with taking an oath, contrary to what he must necessarily have known to be the truth, and the false swearing can be proved by his own letters, relating to the fact sworn to, or by other written testimony existing and being found in the possession of a defendant, and which has been treated by him as containing the evidence of the fact recited by it."116 In a recent case in Texas, it is held that the general reputation of the corroborating witness for truth and veracity may be inquired into and that where the general reputation of such corroborating witness for truth and veracity is bad and he is contradicted by an unimpeached

116 United States v. Wood, 14 Pet. (U. S.) 430, 441, 442.

and disinterested witness, such testimony will not be sufficient to support a conviction.117

§ 3090. Defenses.-Proper evidence is, of course, admissible on behalf of the defendant to rebut and disprove the prima facie case made by the prosecution. He may, for instance, introduce evidence fairly tending to show that the oath or testimony on which perjury is assigned was true and not false, or that it was not on a material matter.118 So, he may show, in a proper case, that the court or officer before whom the oath was taken had no jurisdiction or authority, and this will constitute a good defense,119 but, as already shown, mere irregularities and the like are not, ordinarily, jurisdictional, and there are some limitations upon collateral attacks. Evidence of the intoxication of the accused has also been held admissible in his behalf where it tends to show that he could not have sworn wilfully and corruptly.120 On the other hand, where the defendant on trial. for any charge, falsely swears that he did not commit the unlawful act, the fact that he was justified or acted in self-defense in so acting, is immaterial in his trial for perjury.121 Nor is the judgment of acquittal in the former case admissible to show the defendant's innocence, 122 although such evidence has been held admissible as matter

117 Kitchen v. State, 29 Tex. App. 45, 14 S. W. 392. But in prosecutions for perjury, as in other cases, hearsay evidence, not coming within any of the recognized exceptions, is inadmissible. Pollard v. People, 69 Ill. 148; State v. Fannon, 158 Mo. 149, 59 S. W. 75; Maines v. State, 23 Tex. App. 568, 5 S. W. 123; Reavis v. State, 6 Wyo. 240, 44 Pac. 62.

115 See, State v. Brown, 68 N. H. 200, 38 Atl. 731; State v. Hattaway, 2 N. & McC. (S. Car.) 118; Hinch v. State, 2 Mo. 158.

119 Lambert v. People, 76 N. Y. 220; Jackson v. Humphrey, 1 Johns. (N. Y.) 498; Rex v. Cohen, 1 Stark. 416; see also, Urquhart v. State, 103 Ala. 90, 16 So. 17; Walker v. State, 107 Ala. 5, 18 So. 393; Commonwealth v. Hillehbrand, 96 Ky. 407, 29 S. W. 287; Biggerstaff v. Common

wealth, 11 Bush (Ky.) 169; United States v. Curtis, 107 U. S. 671, 2 Sup. Ct. 507; 2 Hawkins P. C. (7th ed.) 86; Roscoe Cr. Ev. (7th Am. ed.) 817; 2 Wharton Cr. Law, § 1256; 2 Archbold Cr. Proc. & Pl. (8th ed.) 1722; Muir v. State, 8 Blackf. (Ind.) 154; Commonwealth v. White, 8 Pick. (Mass.) 453; State v. Furlong, 26 Me. 69; Hitesman v. State, 48 Ind. 473.

120

Lytle v. State, 31 Ohio St. 196. Or that the testimony was given by surprise, inadvertence and under an excusable mistake. Rex v. Melling, 5 Mod. 349; State v. Woolverton, 8 Blackf. (Ind.) 452; Harp v. State, 59 Ark. 113, 26 S. W. 714.

121 Hutcherson v. State, 33 Tex. Cr. App. 67, 24 S. W. 908.

122 Hutcherson v. State, 33 Tex. Cr. App. 67, 24 S. W. 908; see also, State

of inducement.123 So, it has been said that the fact that an affiant merely stated in his affidavit that he believed it to be true is no defence, where such alleged belief is unreasonable and has no basis.124 And the fact that the false testimony was in an affidavit or deposition which was not used on the trial in which it was taken for use, is not a good defense125 at least under most of the statutes.

§ 3091. Variance.-As already shown, it is not always necessary to prove everything in the indictment upon which perjury is assigned, and where there are several distinct assignments it is generally sufficient to prove any one of them.128 So, proof of the substance of the testimony on which perjury is assigned, where the meaning is fairly shown, is generally sufficient.127 Variances as to time and date are not always fatal,128 but they may be so.129 A variance in regard to whether the officer before whom the perjury was alleged to have been committed was elected or appointed has been held immaterial, 130 but where the indictment alleged that the defendant was sworn by the county clerk and the evidence showed that he was sworn by a city

v. Caywood, 96 Iowa 373, 65 N. W. 385; State v. Williams, 60 Kans. 837, 58 Pac. 476; but see, Cooper v. Commonwealth, 21 Ky. L. R. 546, 51 S. W. 789, 45 L. R. A. 216.

123 Davidson v. State, 22 Tex. App. 373, 3 S. W. 662; Kitchen v. State, 26 Tex. App. 172, 9 S. W. 461. But these authorities also hold that the jury should be instructed that it is limited to that purpose or at least that it should not be considered as proving or disproving perjury.

124 See, Johnson v. People, 94 Ill. 513, 514; Commonwealth v. Cornish, 6 Binn. (Pa.) 249; Rex v. Pedley, 1 Leach 365.

125 Shell v. State, 148 Ind. 50, 47 N. E. 144; State v. Whittemore, 50 N. H. 245; Reg. v. Vreones, L. R. (1891) 1 Q. B. 360; see also, People v. Naylor, 82 Cal. 607, 23 Pac. 116; United States v. Volz, 14 Blatchf. (U. S.) 15; but compare, State v. Joaquin, 69 Me. 218; Jacobs v. State,

61 Ala. 448; People v. Fox, 25 Mich. 492.

120 State v. Hascall, 6 N. H. 352; State v. Blaisdell, 59 N. H. 328; Commonwealth v. Johns, 6 Gray (Mass.) 274; State v. Day, 100 Mo. 242, 12 S. W. 365; Marvin v. State, 53 Ark. 395, 14 S. W. 87; State v. Bordeaux, 93 N. Car. 560; Smith v. State, 103 Ala. 57, 15 So. 866; Harris v. People, 64 N. Y. 148.

127 Rex v. Leefe, 2 Campb. 134; Rex v. Jones, 1 Peake N. P. 37; Taylor v. State, 48 Ala. 157.

129 Matthews v. United States, 161 U. S. 500, 16 Sup. Ct. 640; see also, Commonwealth v. Monahan, 9 Gray (Mass.) 119.

129 Reg. v. Bird, 17 Cox Cr. Cas. 387. As where the indictment is based upon a writing set out in haec verba. Dill v. People, 19 Colo. 469, 36 Pac. 229, 41 Am. St. 254; State v. Ammons, 3 Murph. (N. Car.) 123.

130 State v. Williams, 60 Kans. 837, 58 Pac. 476.

clerk, it was held a fatal variance.131 Other cases showing what is or is not a fatal variance are cited below.132

§ 3092. Generally.-Rape is the carnal knowledge of a woman by a man, forcibly and unlawfully, without her consent or against her will; or, of a female child under the age of ten years, or under such age as the statute of the jurisdiction provides, with or without her consent.1 By consent is meant a conscious permission, and evidence of fraud or fright is proper to prove the lack of consent.2 Evidence may be introduced to show that at the time the prosecuting witness was not capable of giving consent, or that the woman had no will, as when insane, an infant under the statutory age of consent, drugged or asleep. Penetration is essential, but it may be very slight, and may

3

4

1 Don Moran v. People, 25 Mich. 356, 359, 12 Am. R. 283; State v. Pickett, 11 Nev. 255, 21 Am. R. 754; Croghan v. State, 22 Wis. 444; Sutton v. People, 145 Ill. 279, 34 N. E. 420; 4 Blackstone Comm. 210; 1 East P. C. 434.

2 Commonwealth V. Burke, 105 Mass. 376, 7 Am. R. 531; Turner v. People, 33 Mich. 363; State v. Ward, 73 Iowa 532, 35 N. W. 617; Huston v. People, 121 Ill. 497, 13 N. E. 538.

32 Bishop Cr. Law 1115; 1 Hale P. C. 629; Hawkins P. C., chap. 41; Reg. v. Mayers, 12 Cox Cr. Cas. 311;

Reg. v. Barratt, 12 Cox Cr. Cas. 498; Reg. v. Woodhurst, 12 Cox Cr. Cas. 443; Moody v. People, 20 Ill. 316, 319; State v. Cunningham, 100 Mo. 382, 12 S. W. 376; Felton v. State, 139 Ind. 531, 39 N. E. 228; Pomeroy v. State, 94 Ind. 96; Coates v. State, 50 Ark. 330, 7 S. W. 304; Commonwealth v. Murphy, 165 Mass. 66, 42 N. E. 504; Commonwealth v. Burke, 105 Mass. 376, 7 Am. R. 531; Hughes Cr. Law & Proc., § 285, et seq.; Underhill Cr. Ev., § 407.