The People v. Burden. jury assigned must be established by two witnesses; or by one witness and proof of other facts and circumstances in corroboration of the evidence of such witness. If there is but one witness to prove the allegation of falsity, it is but oath against oath, and it must be doubtful on which side the truth lies; and the jury are bound to acquit. This is a very ancient and sound rule, and the reason of it is quite obvious; and where it properly applies, is never to be departed from. But it is not one of universal application. Like all other general rules, it has its exceptions; and the exceptions serve but to show the fitness and value of the rule. This rule does not apply where the evidence consists of the contradictory oath of the party accused. (2 Russ. on Crimes, 545. Roscoe's Cr. Ev. 824.) It is said in Roscoe's Criminal Evidence, 826, that where depositions contrary to each other have been emitted in the same matter by the same person, it may with certainty be concluded that one or the other is false; and that it is the duty of the public prosecutor to specify distinctly which of the two contains the falsehood, and peril his case upon the means he has of proving perjury in that deposition. This of course is to be taken with the qualification that the accused, at the time of making each deposition, knew what the truth was, and knowingly testified untruly. Otherwise the case of counter depositions would be liable to the objections given by the same author at page 825, as stated by Holroyd, justice, that "a person might very honestly and conscientiously swear to a particular fact from the best of his recollection and belief, and from other circumstances at a subsequent time, be convinced that he was wrong, and swear to the reverse without meaning to swear falsely either time." The true rule on this subject, as I conceive, was that contended for by Jones' counsel, in Rex v. Knill, (5 Barn. & Ald. 929,) namely, that mere proof of a contradictory statement by the defendant on another occasion, is not sufficient, without other circumstances showing corrupt motive, and negativing the probability of any mistake. In the case before us, the probability of mistake is expressly negatived by the defendant himself, and the corrupt motive dis ล The People v. Burden. closed by his voluntary oath. And in this respect the case is much stronger than any reported case where a person has been convicted upon proof of his own contradictory oaths merely. The reasons for this exception to the general rule are better stated in the observations read from Mr. Justice Chambers' Precedent Book, on the trial of King v. Harris, (5 Barn. & Ald. 926, note,) than I have seen them elsewhere. After stating that in case of contradictory oaths, where the perjury was assigned upon one of the oaths, the defendant may be justly convicted without any other proof of the perjury than producing and proving the other deposition which the defendant made in contradiction to the one on which the perjury is assigned, it is said, "for it being the defendant's own deposition, he can not be admitted to say the deposition was false; for nemo allegans turpitudinem suam est audiendus, and if that be true, the other on which the perjury is assigned must of course be false. The reason why in other cases the perjury must be proved by witnesses that outweigh the testimony of the defendant, is because where there is only oath against oath, it stands in suspense on which side the truth lies. But when the same person has by opposite oaths asserted and denied the same fact, the one seems sufficient to prove the other. And with respect to the defendant, (who can not contradict what he himself has sworn,) is a clear and decisive proof, and will warrant the jury in convicting him on either; for whichsoever of them is given in evidence to disprove the other, it can hardly be in the defendant's mouth to deny the truth of that evidence, as it came from himself." This is stating the rule, perhaps, rather too strongly, and without the qualification necessary to make it entirely safe. It should be added, I think, that enough should appear either in the evidence used to establish the perjury, or by proof of other facts and circumstances, to show a corrupt motive, and negative the probability of mistake in that on which the perjury is assigned. With this qualification, or rather addition, the rule would be, it seems to me, not only safe but eminently just and salutary. Not that a defendant would be absolutely estopped from proving the truth of the oath alledged to be false, upon any rule of estoppel as The People v. Burden. applied in civil actions; but merely that his testimony in which he has assigned and located the perjury in his former evidence, is to be taken as true, as against himself, until the contrary is established by proof. Until disproved it is conclusive against him. But he may show, notwithstanding his oath to the contrary, that the evidence charged to be false, was in fact true. (State v. J. B., 1 Tyler, 269.) I have not been able to find a single case in this country where this question has arisen, and none were cited upon the argument. In England, however, the question has frequently arisen, and convictions been had upon no other evidence than proof of the contradictory statements under oath. The first case I have been able to find is that of Rex v. Thorogood, (8 Mod. 179.) The defendant made an affidavit in the court of common pleas, and afterwards being summoned to appear in court, came there and confessed it to be false. The court recorded the confession, and ordered that he should be taken into custody and put in the pillory. In answer to the objections of the defendant's counsel, it was argued and held that any court might punish such a criminal for an offense committed in facie curiæ. The next is an anonymous case of a person convicted at Lancaster assizes in 1764, by Yates, justice. The defendant had made his information upon oath before a justice, that three women were concerned at a riot, at his mill, which was dismantled by a mob. Afterwards, at the sessions, when the rioters were indicted, he was examined as to the three women, and having been tampered with in their favor, then swore that they were not in the riot. There was no other evidence to prove the perjury assigned than the defendant's information upon oath. He was convicted and transported; and afterwards Mansfield, chief justice, and Wilmot and Aston, justices, to whom Yates stated the reasons of his judgment, concurred in his opinion. See note to King v. Harris, (5 Barn. & Ald. 926,) where this case is stated, and a precedent for such an indictment given from the precedent book of Chambers, justice. (2 Russ. on Crimes, 545, Roscoe's Crim. Ev. 824.) Another case is that of Rex v. Knill, (5 Barn. § Ald. 929,) The People v. Burden. where the defendant was convicted of perjury, charged to have been committed in examination before the house of lords. The only evidence was a contradictory examination of the defendant before the house of commons. On a motion for a new trial, the court held that the evidence was sufficient, the contradiction being by the party himself; and that the jury might infer the motive from the circumstances. None of these cases are as strong as the one before us. Here is not only the contradictory statement of the party himself, but his farther statement on oath, in open court, that the evidence charged in the indictment to be false, was willfully and corruptly false. There is no ground on which any presumption can be raised that he might have been mistaken. This presumption is all conclusively negatived by the oath of the defendant. Here is every thing made out clearly by the party, which the defendant's counsel in Rex v. Knill contended for, except the point that two witnesses are necessary. This case, I conceive, steers entirely clear of all the cases relied upon by the defendant's counsel, and the rule as laid down in Greenleaf's Evidence, 296. The substance of the whole is, that where there is no proof, other than the mere contradictory statements, it is not sufficient, as was said by Tindal, C. J. in Reg. v. Hughes, (1 Car. & Kir. 527.) "If you merely prove the two contradictory statements on oath, and leave it there, non constat which oath is the true one." This case was relied on by the defendant's counsel, but it is not in point. Tindal, C. J. held that there was such doubt as to whether the defendant might not have been under the impression that the property was hers, at the time she testified, as to warrant an acquittal. And he lays down the true rule, that in order to warrant a verdict of guilty, the jury must be satisfied in a case of that kind that the statement was not only false, but willfully false, to the knowledge of the party making the oath. King v. Harris, (5 Barn. & Ald. 526,) is no authority against the position I have assumed. The only question in that case was whether a conviction could be sustained upon an indictment which set out the two contradictory oaths, alledging that in both instances the defendant swore knowingly and The People v. Burden. deliberately, but did not charge on which particular occasion the defendant swore false. It was a general allegation of perjury, without assigning it to either oath in particular. And the court held that perjury could not be legally charged and assigned in such a case, without averring and showing in which of the two depositions the falsehood consisted. One objection was, that it was bad in form; and another, that the defendant could not plead his conviction or acquittal on such an indictment, as a bar to an indictment charging perjury, in the usual way, on either of the depositions. These were the only points raised or decided in that case. It is to be remarked that this case arose out of the same transaction as that of Rex v. Knill, in which the same court held the conviction good upon the count's charging the perjury to have been committed in the examination before the house of lords. And that the court do not attempt to lay down any different rule, or question the one adopted in that case. The case of Regina v. Wheatland, (8 Carr. & Payne, 238,) merely holds that proof of two contradictory statements under oath is not sufficient to convict, without showing to the satisfaction of the jury that the one charged in the indictment to be false was the false one. In none of these cases, nor in any case or treatise that I have found, is the rule adopted in Rex v. Knill overruled or questioned. But it is unnecessary to go the length of upholding that case, to sustain this conviction. There the court held that the jury might infer the motive from the circumstances of the case. Here we have the positive proof of the corrupt motive, from the mouth of the defendant, under oath. There is no necessity or room for inference, unless we are to presume that the falsehood consisted in the evidence of the defendant, in which he expressly admits the perjury, and assigns the motive. I scarcely think in such a case as this the defendant can drive us to this extraordinary assumption, or decently insist upon it. It seems to me to be a case upon which a conviction and sentence may be quite as safely based as upon a defendant's verbal plea of guilty, in open court. Here are superadded to the admission of guilt the solemnity and responsibility of an oath to speak the truth on the trial of the truth on the trial of a person whose liberty and character, VOL. IX. 60 |