1822.

The KING against HARRIS.

corruption had been practised at B., and was likely to be practised in future unless prevented; that in pursuance of an order of that house for liberty to examine witnesses in support of the bill: the defendant on the 25th June, 59 G. 3., at the parish of St. Margaret, appeared before the House of Lords and was sworn, and then and there knowingly and deliberately, and of his own act and consent, deposed that he was a freeman of Barnstaple, that he remembered the last election, that Wilkinson took a part in the election, and as he believed for Sir M. L.; that W. asked him to vote for Sir M. L., and he told him he would, and that was all that passed; that W. did not at any time say any thing to him as to remuneration for loss of time, that W. did not promise him any satisfaction, or any thing at all, that the sum of 51. was not mentioned between them, that there was not any entertainment going on at W.'s at any time before the election that he knew of; that he, the defendant, voted voluntarily for Sir M. L. or any other gentleman that he wished for, or that his mind led to, that that was his only reason for voting for Sir M. L. The count then avers the identity of persons and places, and concludes thus: "And so the Attorney-General says, that the defendant at the parish of St. Margaret, Westminster, in manner and form aforesaid, did commit wilful and corrupt perjury."

Another of these counts is to the same effect, but with the additional allegations, that the matters deposed by the defendant on each occasion were material.

It is to be observed, that these counts do not charge that the defendant on either occasion swore wilfully, falsely or corruptly; the conclusion that he committed

wilful and corrupt perjury is drawn from the previous allegations, that he swore on each occasion knowingly and deliberately, and of his own act and consent, and from the manifest contradiction in the matters sworn. The question therefore is, whether perjury can be legally charged and assigned by shewing such contradictory depositions, with an averment that each of them was made knowingly and deliberately, but without averring or shewing in which of the two depositions the falsehood consisted. And we are of opinion that it

cannot.

The first objection that occurs on the perusal of this information is the novelty of its form. One or two instances (a) of a similar form were mentioned at the

bar,

(a) The following precedent was read during the argument from Mr. Justice Chambre's Precedent Book.

Lancashire, to wit. The jurors for our lord the king, upon their oath, present that heretofore, to wit, on the 17th day of January, 1774, at Manchester, in the county aforesaid, one copper dish of the value of 2s., ten pewter plates of the value of 6s., &c. &c. of the goods and chattels of one Robert Stevenson, in the shop of the said R. S., then and there being found, were feloniously stolen, taken, and carried away; and the jurors aforesaid, upon their oath aforesaid, further present, that afterwards, to wit, on the 25th January aforesaid, in the year aforesaid, James Dane, of Manchester aforesaid, cobler, came before T. B. Bayley, Esq., then and still being one of the justices of our said lord the king, assigned to keep the peace in the county aforesaid, and also to hear and determine divers felonies, trespasses, and other misdemeanors committed within the same county, and was then and there sworn, and took his corporal oath upon the holy gospels of God before the said T. B. B., the justice aforesaid, he, the said T. B. B. then and there having sufficient power and authority to administer the said oath to the said J. D. in that behalf, and then and there, upon his oath aforesaid, before the said T. B. B., deliberately and knowingly, did say, swear, and give information in writing, that on Monday night the 17th day of January then instant, he, the said J. D. saw James Taylor of and E. Hunt of the same place, shoemaker, go into the shop of R. S. of M. aforesaid, brazier, in Hanging-ditch of M. aforesaid,

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The KING against HARRIST

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The KING against HARRIS

bar, which, however, only shew that some respectable draftsmen may of late have thought the experiment worth trying; no one has ever received a judicial de

cision,

aforesaid, (meaning the said shop of the before-mentioned R.S.) and
that he, the said J. D. was along with them, (meaning the said J. T. and
E. H.,) and stood at the shop door, (meaning the door of the said shop of
the said R. S.,) and that Taylor and Hunt (meaning the said J. T. and
E. H.) filled a large sack or bag with pewter and other goods out of the
said shop, and that Taylor (meaning the said J. T.) carried the sack off,
and that Hunt (meaning the said E. H.) filled his pockets, and, that
amongst other things, that Taylor (meaning the said J. T.) carried
away were one copper dish, &c.; and that Hunt (meaning the said
E. H.) carried away in his pockets one pewter gill, &c. ; and the jurors
aforesaid, upon their oath aforesaid, further present that at this present
sessions of oyer and terminer and general gaol-delivery, holden at the
Castle of Lancaster, in and for the said county, an indictment was found
by the jurors aforesaid against the said E. H. for privately and feloniously
stealing, taking, and carrying away the said first-mentioned one copper
dish, &c. of the goods and chattels of the said R. S., in the shop of
him, the said R. S., there being found; and the said E. H. being arraigned
upon the said indictment before the justices aforesaid, pleaded not guilty
thereto; and issue being duly joined upon the said plea so pleaded, the
said E. H. was thereupon put upon his trial for the said felony at the said
sessions of oyer and terminer and general gaol-delivery. And the jurors
aforesaid, upon their oath aforesaid, further present that, at the said trial
so then and there had as aforesaid, the said J. D. was produced as a wit
ness against the said E. H., and was then and there sworn, and took his
corporal oath before the same justices on the holy gospel of God to speak
the truth, the whole truth, and nothing but the truth of and upon the
premises so put in issue as aforesaid; and the said J. D. being so sworn,
did then and there, deliberately and knowingly, and of his own act and
consent, say, depose, and give evidence before the same justices that he,
the said J. D., did not see the said E. H. on the night when the said shop
of the said R. S. was broken, and so the jurors aforesaid, upon their
oath aforesaid, do say that the said J. D., to wit, at Lancaster aforesaid,
did in manner and form aforesaid commit wilful and corrupt perjury, to
the great displeasure of almighty God, &c.

The following observations then occur:

It has been doubted whether, if the same person swears contrary ways at different times, he can legally be convicted of perjury without some

further

cision, and as instances of contradictory swearing have occurred at all times, and as this form of proceeding affords the greatest facility of proof to a prosecutor, the

want

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The KING against HARRIS.

further proof to falsify that testimony on which the indictment assigns
the perjury. For it is said, that on which soever of his contradictory
oaths the perjury be assigned, that oath must be taken to be true, unless
disproved by two other witnesses. On the other hand, some have thought
that if the indictment states the two contradictory oaths, and then con-
cludes, that "so the defendant committed wilful and corrupt perjury,"
without any averment to falsify the facts sworn in either of the oaths, it is
sufficient to warrant a conviction: perhaps an indictment in that form
might be sufficient; but even upon the common indictment assigning the
perjury upon one of the oaths only, and averring the falsity of the facts
there sworn, (in the usual form,) it seems that the defendant may justly
be convicted without any other proof of the perjury, than producing and
proving the other deposition which the defendant had made in contra-
diction to that on which the perjury is assigned; for its being the defend-
ant's own deposition, he cannot be admitted to say that 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 disprove the other,
and with respect to the defendant (who cannot 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. Upon this principle
Yates J. convicted a man at Lancaster Summer assises, 1764.
had first made his information on oath before a justice of the peace, that
three women were concerned at a riot at his mill, (which was dismantled
by a mob, on account of the price of corn;) and afterwards at the sessions,
when the rioters were indicted, he was examined concerning those women,
and (baving been tampered with in their favour,) he then swore that they
were not in the riot. There was no evidence on the trial of the defend-
ant for this perjury to prove that the women were in the riot, (which was
the perjury assigned,) but the defendant's own original information on
oath being produced and read, whereby he had sworn they were in the

He

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The KING against HARRIS.

want of precedents of this kind cannot be accounted for but by supposing that an indictment in this form has not been generally considered to be good.

The next and most material objection is, the injury to which a defendant may be exposed. For we think it impossible to say consistently with any known rule of law, that a person acquitted or convicted on an indictment in this form, could plead such acquittal or conviction as a bar to an indictment, charging perjury in the usual way on either of the depositions. The answer to such a plea would be, "you have never been tried on the charge now preferred against you," and such an answer would undoubtedly be true, in fact, and we think good in law. So that a defendant might be twice put in peril of the punishment of perjury, and perhaps twice convicted and punished on the same subject-matter if an indictment like the present could be sustained.

meanor.

It is not necessary to say whether an indictment charging contradictory depositions, together with other charges and averments not found in the present information, would be good as an indictment for a misdeThe difficulty of shewing on which of two occasions a party swore falsely, may perhaps enable a person to escape punishment, whose conduct like that of the present defendant may plainly appear to be in the highest degree reprehensible. But we think it better that such a person should escape than that an indictment

riot, the judge thought it sufficient to convict him. He was accordingly found guilty, and transported.

And afterwards Lord Mansfield C. J., and Wilmot, and Aston Js, to whom Yates J. stated the reasons of his judgment, concurred in his opinion.

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should