adopted. In Rex v. Thorogood (a), it was held in the Common Pleas, that where a man confessed an affidavit made by him to be false, that Court might, under 5 Eliz. c. 9. s. 9., order him to be pilloried for perjury committed in the face of the Court. Yet there, as here, it would be impossible to say on which of the two occasions the perjury was committed. There are precedents of indictments in this form, one of which is to be found in a note-book of Chambre J. And Yates J. convicted a person at the Lancaster assizes, 1764, on an indictment in this form, supported by similar evidence as in this case, which conviction was afterwards approved by Lord Mansfield C. J. and Wilmot and Aston, Js., to whom he mentioned the case. And there was another case at the York assizes, where a similar verdict was given, on an indictment containing a charge like the present, where the only evidence was the two contradictory depositions. As to the argument, that a defendant, if, after an acquittal on such a count as this, he should be subsequently indicted in the usual form for perjury committed before the House of Lords, could not plead auterfoits acquit, it is perhaps sufficient to say that it cannot apply to this individual case; for here he might so plead. But even if these counts objected to were the only counts in the information, the Court would probably consider the crown as having, in that case, elected to proceed in this way, and would, therefore, prevent them from taking further proceedings in the same matter. As to the omission of the words "wilfully and corruptly," that was necessary, because one of the depositions being true, both could not be wilfully and corruptly made. It is, however, charged, (a) 8 Mod. 179. 1822. The KING against HARRISS 1822. The KING against HARBIS. that the defendant deliberately, knowingly, and of his own act and consent, did swear, &c. and that is sufficient. In the fourth and fifth counts it is not averred that the defendant's evidence related to material questions. That averment is not necessary; for it is quite sufficient if on the face of the indictment the questions appear to be material. And this averment is always omitted in the entries in Tremayne. Besides, the sixth and seventh counts do contain the averment; so that it is not important to discuss that question. Adolphus and D. F. Jones, contrà. It may be admitted, that if the indictment had charged the perjury to have been committed before the House of Lords, the contradictory evidence previously given before the House of Commons might have been sufficient alone for the jury to have convicted the defendant of perjury. But then they would have found distinctly on which occasion the defendant had sworn falsely. This question is, however, very different. This is not a question upon the sufficiency of evidence, but upon the insufficiency of the shape and form of the accusation. The cases which have been mentioned are not authorities to govern the present; there the indictments appear to have contained counts framed in the ordinary way, as well as a count in this form, and there was a general verdict; and no such objection as the present could be available, if there was any one sufficient count. Besides, none of those cases appear to have undergone much discussion at the bar, or any consideration in Westminster Hall. With respect to the present experiment, it is in truth a charge, in the alternative, imputing, that either on the one occasion or the other, the defendant committed committed perjury. Now, according to all the rules of criminal pleading, every indictment must contain a precise charge of a specific fact, alleged to be a crime committed on a particular day and at a particular place. Here no particular time or place is alleged, as to the crime intended to be insisted upon; two oaths are stated, of which it is said one must be false; it may be equally said that one must be true; but which was false and which true, the indictment does not state. Suppose an acquittal on such an indictment, and a defendant to be afterwards indicted in the ordinary form for perjury before the House of Lords, he could not plead auterfoits acquit, because it is not certain whether this indictment charges him with perjury there; he might then be indicted for perjury before the House of Commons, and he could not plead auterfoits acquit, for a similar reason; and so, for one offence, he might be tried three times. Suppose, again, that the two oaths are in different counties: in which is he to be tried? Suppose, also, a pardon of all offences up to a particular day. These are difficulties which shew, that, as this count is contrary to the principles of criminal pleading, so is it also contrary to justice. In Com. Dig. Indictment, G. 2., it is laid down, that it is bad if the day be uncertain, as if the offence be laid in Festo St. Petri, and there be two feasts of St. Peter. And in the same book and title, G. 3., many instances are given of indictments for murder and felony, which were held bad for their uncertainty, and for their being laid, as here, in the alternative. (a) The present form is also contrary to all the precedents of indictments in ordinary use; and the incongruity is here manifest, for the persons 1822. The KING against HARRIS 1822. The KING against HARRIS. framing it are actually obliged to omit the words wilfully and corruptly, because they cannot say which of the two oaths was wilful or corrupt. And such an omission is fatal; Rex v. Cox. (a) This indictment is also opposed to the legal definition of the crime of perjury, which comprises a wicked intent and corrupt motive. The mere circumstance of a party's having sworn contrarily to what he did on a former occasion, is not, necessarily, perjury. It may have arisen from forgetfulness, inadvertency, or mistake; and therefore, a corrupt motive must be alleged; and yet, the bare inconsistency between the two paths is all that is charged in this indictment. The same conclusion may also be drawn from the provisions of the statute 25 Geo. 2. c. 11., which, while it shortens the allegations in indictments for perjury, expressly retains and directs "the proper averments to falsify the matters wherein the perjury is assigned." Besides the point has been distinctly and solemnly decided; for in the case of Rex v. Perrott (b), the Court, in giving judgment, lays down the rule as to false pretences, that it must be stated in the indictment which are true and which false, in order to apprise the defendant of the charge; and they appear to have founded their judgment mainly on the analogy to the case of perjury, in which, as they all say, the falsification must not be to the whole, but to the particular thing relied on, as being false; and Lord Ellenborough there says, that the rule in cases of a mixed nature, where part is true and part false, is to separate, by specific averments, all that which is meant to be relied on as false. Here that is not done, and, therefore, this indictment is bad. Cur, adv. vult. (a) 1 Leach's Crown Cates, 82. () 2 M. & S. 379. And And now, on this day, the judgment of the Court was delivered by ABBOTT C. J. This case came before the Court on a motion in arrest of judgment, the defendant having been convicted on some of the counts of an information exhibited against him by the Attorney-General. One of these counts charges in substance, that a select comImittee of the House of Commons met to determine the merits of a petition, complaining of an undue election and return of two members of parliament for the borough of Barnstaple; that the defendant was sworn and examined as a witness before the committee at the parish of St. Margaret, Westminster, on the 1st of March, 59 G. 3., and then and there deliberately and knowingly, and of his own act and consent, deposed that he was a voter of the borough; that one Wilkinson took a part for Sir M. L., one of the candidates, that the friends of Şir M. L. were entertained with eating and drinking at Wilkinson's; that he, the defendant, voted for Sir M. L.; that Wilkinson asked him for his vote, and told him he should have 57., with a proviso that he would give his word then to vote for Sir M. L.; that he did vote for Sir M. L., and also for another of the candidates, Sir Henry Thompson; that he voted for Sir M. L. on account of the promise of 51., that he should not have voted for Sir M. L. without money, and that he should have given a plumper to Sir H. Thompson, if he had not had the money offered to him. The count then further charges, that at a session of parliament, a bill entitled "An act for preventing bribery and corruption in the election of members to serve in parliament," was pending before the House of Lords, reciting that bribery and corruption 3 P 4 1822. The KING against HARRISS |