Commonwealth v. Wright

44 N.E. 129, 166 Mass. 174, 1896 Mass. LEXIS 105

• Court: Massachusetts Supreme Judicial Court
• Decided: May 22, 1896
• Status: Published

Opinion

Allen, J.

1. The first objection to the indictment rests entirely on the difficulty arising from the careless insertion of certain words which make the first part of the indictment senseless as it stands. The indictment undertakes, at 'the outset, to set forth the case in which the alleged perjuries were committed, and the words “ Joseph Wright, late resident of Maynard, in the county of Middlesex and Commonwealth aforesaid,” and then again the words “ with force and arms,” are found in this part of the averments, where they have no relevancy or meaning. This error is obvious enough after it is pointed out, and if the words are rejected the averments are sufficient to show the regularity of the legal proceedings in the course of which the alleged perjuries were committed. Pub. Sts. c. 205, § 5. The said words may be rejected as meaning less. 1 Bish. Grim. Proc. § 481 and note, and cases cited.

2. The objection most relied on is that the indictment does not sufficiently allege the materiality of the facts testified to by the defendant. The indictment clearly avers that it became a material question whether certain intoxicating liquors seized at Stow were the property of McManus, and it then proceeds to aver in detail, in respect to different parcels or cases of the liquors so seized, that the defendant testified that one of said parcels was the property of one Clayton, and was purchased by said defendant for said Clayton; and that another of said parcels was the property of one Walsh, and was purchased by said defendant for said Walsh; and so on with respect to other parcels, which the defendant testified were the property of, and were purchased by him for, other persons who were named. The indictment then goes on to aver in detail that no part of the liquors seized was the property of Clayton, or was purchased by the defendant for him, and so on in respect to Walsh and the others. The indictment concludes with a general averment that the defendant committed perjury by swearing to said falsehoods. The defendant objects that it does not sufficiently appear that the testimony of the defendant related to the same time when the liquors were alleged to have belonged to McManus, and that McManus might have bought the liquors from Clayton, Walsh, etc., or they might have bought the liquors from the defendant. It is true that the words “ then and there ” are not introduced at this point; but, taking all the averments of the detail of circumstances testified to by the defendant, it sufficiently appears that the defendant’s testimony, as charged in the indictment, negatived McManus’s ownership.

3. The defendant contends that it is not averred that he was “ lawfully required to depose the truth in any proceeeding in a course of justice.” Pub. Sts. c. 205, § 1. But the averment of his being called and sworn as a witness includes this. Commonwealth v. Knight, 12 Mass. 273, 276.

4. The defendant contends that it does not appear that the perjury was committed in a criminal case. Pub. Sts. c. 205, § 5. The description of the subject of the complaint sufficiently shows that it was a criminal case. Commonwealth v. Bouvier, 164 Mass. 398.

5. The defendant contends that, according to the true construction of the indictment, the averments of his testimony end with the charge of what he testified in respect to Clayton, and that the final averment that he committed perjury by swearing to “ the falsehoods above set forth ” includes only the falsehoods as to Anderson. This construction, however, is not warranted. The indictment sufficiently charges perjury in his testimony as to Clayton, Walsh, Anderson, and the others.

6. The verdict of guilty was warranted by the evidence.

¡Exceptions overruled.