Commonwealth v. Hatfield

107 Mass. 227

Opinion

Colt, J.

1. The defendant moves to quash the indictment because it fails to allege facts necessary, as he claims, to the jurisdiction of the bail commissioner before whom the alleged perjury was committed. He relies upon the provisions of the Gen. Sts. o. 170, §§ 35-37. A person who has been committed to jail, either with or without an order fixing the amount of the recognizance, may be admitted to bail. But when the amount is not fixed, reasonable notice to the officer who committed him is required by the statute to be first given. It is not stated in this indictment, whether the prisoner was or was not committed under an order fixing the amount of the recognizance. And it is therefore insisted that, without the allegation of notice to the officer, the authority of the commissioner is not sufficiently set forth. It would seem that the bail bond or recognizance, even if the notice were not given in fact, would still be valid and binding upon all parties ; and if so, this requirement must be deemed directory in character, and not a condition precedent to the exercise of the jurisdiction. The more decisive answer is, that it is not now necessary, in an indictment for perjury, to set forth the authority of the court or person before whom the offence was committed. It is here averred that the defendant was lawfully required to make a statement of his property before a commissioner authorized and duly qualified to take bail; and this was a sufficient allegation of authority, as the law now stands. Sts. 1860, c. 186, § 1;

Footnotes

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* 1862, c. 159, § 1. Commonwealth v. Hughes, 5 Allen, 499.

2. It is further objected, that the indictment does not allege that the defendant was required to make a written statement un der oath; or that he was sworn to make it; or that he was sworn to the truth of it, when made. The indictment contains all the material averments to be found in Commonwealth v. Hughes, 5 Allen, 499. It sufficiently alleges, as we construe it, that the defendant knowingly and falsely made statements under oath which were material. It can make no difference that, either before or after the oath was administered, the statements made were reduced to writing and signed by the defendant. The offence consists in the false statement of material facts under oath, knowing them to be false, without reference to the mode of statement, whether oral or written. Commonwealth v. Carel, 105 Mass. 582.

3. The clerk's docket and the papers filed in the case constitute the record, and are competent evidence until the record is extended. McGrath v. Seagrave, 2 Allen, 444. There is nothing in the exceptions to show any irregularity in these proceedings, or that they were not sufficient to give the commissioner authority to act. If the record showed that the amount of the recognizance was fixed by the order of the court, it would be sufficient, without regard to the question of notice to the officer.

4. There was no variance, for the reasons already given, between the proofs as to the manner in which the statements were made and sworn to, and the allegations in the indictment. The proof was ample, that the defendant made oath to the matters contained in the written paper. If it were a question of variance between the paper produced and the recital in the indictment, it would be sufficient, under the recent statute, if the identity of the instrument was evident and the purport sufficiently described to prevent prejudice to the defendant. St. 1864, e. 250, § 1.

5. It was not necessary for the government to prove the falsity of the statement in all its details. If the defendant did not own all the items of property enumerated, then it was false and material as a representation of his responsibility as surety, even though a part of the property was sufficient to cover the amount of the recognizance. The evidence to prove the falsity was competent. It would perhaps have been sufficient to prove title in the defend ant’s wife under the will, and rely on the presumption of its continuance in her; but the fact that the records showed no conveyance from her, in the absence of any evidence of title in the defendant, strengthens the presumption of title still in the wife.

We see no error in the rulings, refusals or instructions of the superior court.

Exceptions overruled.

“In every indictment for perjury, or for unlawfully, falsely, fraudulently, deceitfully, maliciously or corruptly taking, making, signing or subscribing any oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate or other writing, it shall be sufficient to set forth the substance of the offence charged upon the defendant, (if the perjury be alleged to have been committed in a criminal case,) or the nature of the controversy in general terms, (if the perjury be alleged to have been committed in any civil suit or proceeding,) and by what court, or before whom the oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate or other writing was taken, made, signed or subscribed, without setting forth the bill, answer, information, indictment, declaration, or any part of any proceeding, either in law or in equity, and without setting forth the commission or authority of the court ór person before whom tie offence of perj ary was committed.”