The People v. Burden.

by his former oath before another and different tribunal, he had put in jeopardy.

It would be a strange anomaly indeed if a defendant, neither by his admissions nor his oath, could furnish sufficient evidence to convict himself of this offense in a case where the corpus delicti is so manifest. The soundness of the rule has never been questioned, that where there is one witness to prove a contrary state of facts, there the confessions of the defendant, or a letter written by him, or a bill of costs delivered, contradicting the statement on oath, renders it unnecessary to have a second witness. (Mayhew's case, 6 Car. & P. 315.) In such case there is but the oath against oath, with the addition of the admission. It must be admitted that the oath of the party himself, testifying to a different state of facts, is quite as strong evidence, to say the least, as that of any one other witness. Here then we have not only the oath against oath, but the admission, not casually made, not by letter or the mere delivery of a paper, inconsistent with the oath, it is true, but under the solemn sanction of an oath, that the first testimony was intentionally false. I confess that the case in every aspect, as the evidence stood before the jury, seems to me too clear for demonstration. And the reasons why the rule which requires two witnesses, or one witness and proof of other corroborating circumstances, in ordinary cases, to convict of perjury, does not apply in a case like this, where every thing is furnished by the oath of the party himself, must, I think, be sufficiently obvious.]

Again; it was urged upon the argument that if this conviction was allowed to stand, the defendant would be liable, notwithstanding, to be indicted and tried for perjury in his last testimony on the trial of Divine, and could not plead this trial and conviction in bar, and that he would thus be liable to be put twice in jeopardy for the same matter. A very slight attention to this position will show its unsoundness. The same objection was urged in arrest of judgment in The King v. Harris, where the indictment did not aver or charge which of the two depositions was the false one, and upon that ground mainly, the rule to arrest was made absolute. While in the other case of King v. Knill,

The People v. Burden.

where several of the counts assigned and charged the perjury to have been committed in the deposition before the house of lords, and the defendant was convicted on those counts, the rule was refused. It is plain that the rule was very properly applied in the case of King v. Harris, and equally so that it has no application here. There the court held that the public prosecutor ought to have charged in which particular deposition the perjury lay, and periled his case upon his means of proving that averment. And it was because the perjury was not assigned or located any where that the defendant would be liable to be tried upon an indictment charging the perjury to be in either one of the depositions. The jury had convicted the defendant upon a general allegation of perjury, without being called upon to determine which was the true and which the false of the two contradictory depositions. Assuming that the defendant testified knowingly, and without mistake, on each occasion, the one was necessarily true and the other as necessarily false; and the prosecutor had not charged nor had the jury found which. Neither the truth nor the falsity of either particular deposition had been tried, nor any issue formed upon it. Not so here: the indictment charged the perjury to have been in the deposition before the grand jury, and upon that issue is taken, and that issue has been tried. The indictment sets out the material evidence in both depositions, charges the one to be false, and necessarily assumes the other to be true. The cause was tried upon the charge, and the jury have found that the last deposition was true and the first false. The case was put to the jury whether they believed the last deposition to be true, and if so, they had the right to convict. This they have found. Only one deposition could by any probability be false. The prosecutor has charged and the jury found which was false, and the truth of the other is just as conclusively established. It is preposterous to urge that the public prosecutor could now turn around and predicate an indictment upon the alledged falsity of the last deposition and bring the defendant to trial upon it, or in any way put him in jeopardy. This conviction would be the most complete and effectual bar that can be imagined. If it could be done, would the same evidence given

The People v. Burden.

on this trial convict? By no means; because the evidence given on this trial explicitly declares the last deposition to be true and the first false. But I think it very clear that this trial and conviction are a perfect bar to any farther prosecution for the manifest perjury committed by the defendant, whether this conviction is sustained or not. He might be tried over on this indictment, but no new prosecution could be instituted for perjury in the other deposition. My conclusions therefore are, 1. That where a defendant, by a subsequent deposition expressly contradicts and falsifies a former one made by him, and in such subsequent deposition expressly admits and alledges that such former one was intentionally false at the time it was made; or in such subsequent deposition testifies to such other facts and circumstances as to render the corrupt motive apparent, and negative the probability of mistake, in regard to the first, he may be properly convicted upon an indictment charging the first deposition to be false, without any other proof than that of the two depositions. 2. That a trial and conviction upon such an indictment would be a complete bar to any farther or other prosecution for the same perjury, in whichever deposition it may in fact have been committed. The conviction should therefore be affirmed, and a new trial denied.

WELLES, J. concurred.

SELDEN, J. dissented.

New trial denied.

SAME TERM. Before the same Justices.

GRAVES VS. HARWOOD.

The defendant, at Lockport, shipped on board a canal boat belonging to the plaintiff, 590 barrels of flour, consigned to C. & C., New-York, at the same time taking from the master of the boat a shipping bill, acknowledging the receipt of 600 barrels, and agreeing to deliver the same as consigned, subject to a charge for freight. The defendant was the absolute owner of the flour until its arrival in New-York. The deficiency of ten barrels was occasioned by an accidental miscount in loading the flour upon the boat, at Lockport, and was not ascertained until the boat arrived at New-York. When the deficiency was ascertained, the consignees demanded of the master of the boat, and he paid them, $60, being $6 per barrel for the ten barrels which were missing. The consignees subsequently accounted with the defendant for the whole 600 barrels. Held that the plaintiff might recover of the defendant the $60 thus paid to the consignees, by the master of the boat, in an action for money paid, or money had and received. Held also, that parol evidence was properly received, to show an error or mistake in the bill of lading, as to the quantity of flour shipped.

MOTION to set aside report of referee. The declaration was upon the common money counts, with a count upon an insimul computassent.

On the trial before the referee, the following facts appeared. On the 23d day of September, 1847, the defendant, at Lockport, shipped on board the canal boat "William Graves," Capt. Arndt, 590 barrels of flour, and took a shipping bill in the words and figures following:

Lockport, Sept. 23d, 1847. Shipped in good order, by H. M. Harwood, on boat William Graves of, Capt. Peter Arndt, the following articles, viz.

Graves v. Harwood.

Which property above specified, I, the said captain, have received in good order, and agree to deliver in like order, without delay, as consigned. PETER ARNDT."

The captain transported the flour to New-York, and on arriving there delivered a duplicate of the shipping bill to the consignees, which the defendant had forwarded to them by the captain. The consignees received the flour, paying the aforesaid charges thereon, and upon discovering or being told by the captain of the deficiency, they demanded of him, and he paid them, $60, being $6 per barrel for the ten barrels of flour contained in the shipping bill more than had been delivered to the captain, or by him to the consignees. This deficiency was occasioned by an accidental miscount in loading the flour upon the boat at Lockport, which miscount was not ascertained until the flour was partly unloaded in New-York. When this deficiency was discovered, the consignees claimed that it had been lost by the captain on the way. The captain claimed that he had not received it, but paid for it as above stated. It was proved to the satisfaction of the referee that the consignees accounted with the defendant for the 600 barrels of flour, contained in the way bill. It appeared that the plaintiff owned the boat, and that she was run on his account, but that the captain manned and victualed her, and ran her for $180 per month, the plaintiff receiving her earnings. Parol evidence was given to show that there were only 590 barrels of the defendant's flour delivered on the plaintiff's canal boat at the time the shipping bill was made, which evidence was objected to by the defendant's counsel, and the objection overruled and the defendant's counsel excepted. There are some other facts stated in the case, which are sufficiently adverted to in the opinion which follows.

The defendant's counsel objected to the plaintiff's recovering in the action, upon the grounds, among others, that the action, if sustainable at all, should have been brought by and in the name of the witness Peter Arndt; also that the plaintiff, if he could recover at all, could not do so upon the money counts in assumpsit. These objections were overruled, and the defendant excepted. The referee reported in favor of the plaintiff for $68,96.