Deckard v. State

Miller, J.,

delivered the opinion of the Court.

The appellant has been tried and found guilty of the crime of perjury. The only matter to be reviewed on this appeal is the judgment overruling a general demurrer to the indictment. The exception taken at the trial to the ruling upon the admissibility of evidence has been very properly abandoned in this Court without argument. The correctness of that ruling is too clear to admit of a moment’s doubt, and if the appeal rested alone upon lhat exception, there would have been great impropriety of conduct on the part of counsel for the accused in making the affidavit required by the Act of 1872, ch. 316. That Act has introduced a new feature into the administration of criminal law in this State. It allows exceptions to be taken in criminal trials to any ruling or determination of the Court in the same manner as is now practiced in civil cases, and gives an appeal from such ruling or determination, provided the counsel for the accused shall malee oath that such appeal is not ialeen for delay. This proviso was inserted for the purpose of preventing delay in the punishment of offences, by appeals on points too plain to be controverted. It does not permit a party found guilty of crime to secure a postponement of punish *201 ment consequent upon an appeal, by taking this oath, but requires it to be made in all cases where the accused is the appellant, by his counsel, thus requiring a solemn pledge from the judgment and conscience of one who is a member of a learned and honorable profession, that he believes the rulings against his client are erroneous. It is the duty of this Court to see to it, so far as it may have power, that the intention of the Legislature in imposing this wholesome and salutary restriction upon appeals in such cases is not defeated. Rut we assume this affidavit was made not in view of the exception referred to, hut of the judgment overruling the demurrer to the indictment, and was hence very properly made.

The perjury assigned is giving wilfully on affirmation, false testimony material to an inquiry into the legality, cause and propriety of the confinement and detention of a party brought before Judge Motter, Associate Judge of the Circuit Court for Washington County, upon a writ of habeas corpus. It is not doubted that false testimony material to the issue, wilfully given under oath on such an inquiry, would be perjury at common law, as being given in a judicial proceeding, or course of justice, and is therefore within the first class of cases which the Code (Art. 30, sec. 155,) declares shall be deemed perjury. The question then is, does this indictment sufficiently charge the offence? There may be in it unnecessary diffuseness of statement, and much that must be rejected as surplus-age, but this does not vitiate it, provided the Court can see that it sets forth the substance of the offence charged, and that all matters material to constitute the crime, are alleged with such positiveness and directness, as not to need the aid of intendment or implication. It must also be remembered, that the first and second sections of the Statute of 23 Geo. 2, cap. 11, enacted in 1750, entitled “An Act to render prosecutions for perjury, and subornation of perjury, more easy and effectual” are in force in *202 this State. Kilty's Report of Statutes, 252 ; Alexander’s British Statutes, 766. That statute after reciting in its preamble that “by reason of difficulties attending prosecutions for perjury and subornation of perjury, those heinous crimes have frequently gone unpunished, whereby wicked and evil disposed persons are daily more and more emboldened to commit the same, to the great dishonor of God and manifest let and hindrance of justice,” provides by its first section, “that in every information or indictment to be prosecuted against any person for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what Court, or before whom the oath was taken, (averring such Court, or person or persons, to have a competent authority to administer the same,) together with the proper averment or averments to falsify the matter or matters wherein the perjury or perjuries is or are assigned, without setting forth the bill, answer, information, indictment, declaration or any part of any record or proceeding, either in law or equity, other than as aforesaid; and without setting forth the commission or authority of the Court or person or persons, before whom the perjury was committed ; any law, usage or custom to the contrary notwithstanding.” With these preliminary remarks we proceed to consider the several objections to this indictment presented by the very able and ingenious argument of the appellant’s counsel.

1st. The first objection is that the indictment fails to show that, the Judge had jurisdiction of the question concerning which the alleged perjury was committed. It has been decided (Overton’s case, 45 Eng. C. L. Rep., 88,) that the Statute of 23, Geo. 2, does not dispense with the necessity of showing distinctly in the indictment, that the false oath was taken in a judicial proceeding, and it is argued that the jurisdiction of a Judge in matters of habeas corpus, is, in this State, special and limited under our *203 Acts of Assembly, and the familiar doctrine is invoked, that where a special limited jurisdiction, distinct from its general jurisdiction is conferred by statute on any tribunal, its power to act must appear on the face of the proceedings. But in our judgment, this doctrine does not apply to proceedings in cases of habeas corpus. They are not simply proceedings authorized by special statutes which require certain things to be done as conditions precedent, and before authority to act is conferred. The writ of habeas corpus is a common law writ, having for its great object the liberation of persons imprisoned without sufficient cause. Tbe provisions of our Code, like those of the celebrated Statute of 31, Charles 2, were enacted for the purpose of enforcing the common law, and of securing to the citizen the benefits for which the writ was given, by preventing oppression consequent upon its evasion or delay in its issual and return. Hence, Courts and Judges are clothed with jurisdiction and power to issue it at all times and in all places throughout the State. An immediate or speedy return with production of the body and cause of detention is secured, punishment is prescribed for officers who refuse or neglect to execute it, the Judge who refuses to issue it is made liable to an action by the party aggrieved, and a person once discharged under it is exempted from being again imprisoned for tbe same offence unless surrendered by his bail or convicted of the offence for which he gave bail. It is thus that the common law is enforced. The first section of the Article in the Code on habeas corpus as amended by the Act of 1867, ch. 144, provides that “the several Circuit Courts of this State and the Circuit Court of Baltimore City, and the several and respective Judges thereof out of Court, and each of the Judges of the Court of Appeals shall have jurisdiction over the whole State in all matters relative to habeas corpus, except those involving the relation of master and apprentice.”

*204 This confers jurisdiction in the broadest and most general terms over a common law writ. The Act of 1862, ch. 36, repeals the original third section of the Article in the Code, and enacts in lieu thereof, that “fif any person be committed or detained for any'crime, or under any color or pretence whatsoever, he or any one on his behalf may complain by petition to any one of the Courts or Judges mentioned in the first section of this Article, and the said Court or Judge shall forthwith grant a writ of habeas corpus, directed to the officer or other person in whose custody the party detained shall be, returnable immediately before the said Court or Judge granting the same: provided, the person detained be not committed or detained for treason or felony, plainly expressed in the warrant of commitment, or be not convict, or in execution by legal process: and provided, that if the person detained be so detained under color of a warrant of commitment, the petition presented by him or on his behalf accompanied by a copy of the warrant of commitment or detainer or cause of commitment or detainer, or otherwise by an affidavit that a copy thereof was demanded by him of the person in whose custody the prisoner is detained, and the same was neglected or refused to be given : and provided, that if the detainer is on any other color or pretence, there be probable ground shown to the Court or Judge, that the person by or on whose behalf the said application is made, is detained without just cause : but nothing herein shall prevent the issuing of a writ of habeas corpus, at the instance of a person arrested on a charge of any offence, which is bailable by law, in order that he may be discharged on bail in the usual course of law.” The provisos in this Act are specially relied on by the appellant's counsel, his contention being that they constitute conditions precedent to the power of the Judge to issue the writ, and must be negatived or conformed with in all cases before jurisdiction attaches. What may *205 be tbeir true construction or effect in connection with other sections of the Article still in force, and in view of the universal practice under them, need not now be determined. It is plain however, that the utmost effect that can be attributed to them is, that they except as did the Statute of Charles, from those entitled to the benefit of the writ, parties convicted or in execution, and (save for the purpose of being bailed,) parties committed for felony or treason plainly expressed in the warrant, and in other cases prescribe certain formalities in reference to the petition for the writ without the observance of which the application may be refused. But the precise question we are now dealing with, is whether in an indictment for perjury alleged to have been committed at the inquiry arising before a Judge upon return to a writ of habeas corpus actually executed, it is necessary, in order to show that the false testimony was given in a judicial proceeding, or that the Judge had jurisdiction in the matter, to aver that in the particular case the party brought up under the writ was not embraced by the first of these provisos, or that the application was in conformity with either of the other two. In view of the nature of the proceeding in such cases, and the terms in which jurisdiction is conferred, and after a most careful consideration of the subject, we are of opinion no such averment is necessary. It is averred in this indictment in direct and positive terms, that Judge Motter, Associate Judge of the Circuit Court for Washington County, by virtue of the authority vested in him by the Constitution and laws of this State, did, upon the petition and application of a certain J, Clarence Mobley, order the writ of habeas corpus, to.be issued out of the said Circuit Court, directed to the Sheriff of said County, commanding him to produce the body of the said Mobley held in confinement by him, together with the cause of his detention, and that the writ be returnable immediately at a desig *206 nated place before the said Judge: that the writ did issue as directed, and the sheriff in obedience to it did produce the body of the said Mobley, together with the cause of his detention and confinement, at the appointed place and time, before the said Judge. These averments are quite sufficient to show that the inquiry thereupon instituted by the Judge into the legality, cause and propriety of the confinement and detention of the party, was a judicial proceeding before a competent jurisdiction. This jurisdiction is altogether different from the limited and special jurisdiction conferred by our attachment laws, as well as that conferred upon Courts or Commissioners by statutes providing for the opening of roads and other like purposes. It is also equally unlike those upon which were based the decisions in Overton’s Case, 4 Adol. & Ellis, N. S., 83, and Bawlin’s Case, 8 Carr. & Payne, 439.

2nd. The next objection of most importance, is, that the materiality of the false testimony to the issue or question depending, is not sufficiently averred. This materiality must appear in one of two ways, either upon the face of the indictment, or by express averment. It may sufficiently appear to be material from the nature of the evidence itself, or from certain facts stated by way of inducement in the commencement of the indictment, or its materiality may be stated by way of averment. But it is sufficient that this appears in one of these two methods; it need not be made so to appear by both. 3 Arch. Cr. Pr. & Pl., 598; 2 Chitty’s Cr. Law, 309 ; 2 Bishop’s Cr. Procedure, sec. 854. After averring the issue and return of the writ as before stated, the indictment proceeds to aver, in substance, that Mobley pleaded that he had committed no offence, and that there was no sufficient legal cause for his detention, and the Judge thereupon proceeded to inquire into the legality, cause, and propriety of his confinement and detention; that *207 while the Judge was conducting, this inquiry, the appellant appeared before him as a witness in support of the legality of Mobley’s confinement and detention, and having been duly affirmed, did, in order to prevent the Judge from knowing the truth, and to continue the imprisonment and detention of Mobley, wilfully, falsely, corruptly, and knowingly, commit perjury upon his affirmation, by deposing and affirming in answer to questions propounded to him, in the matter depending before the said Judge, among other things in substance, to the effect following, that is to say, that the said Mobley and eight other named persons, “five or six weeks ago, (meaning five or six weeks before the making of said affirmation,) on one night about nine or ten o’clock, did enter together into the saloon of Daniel Ward, kept in the house of James Pickett, and having entered the saloon as aforesaid, some one of the above named persons said, let us break down Deckard, let us swear against him, and that the others of the above named persons assented to the same, and that they did then and there, enter into a conspiracy against him, the said John C. Deckard.” This is followed by the requisite averments of the falsity of the statement and testimony so given. It is matter of much doubt, whether the materiality of this testimony to the pending investigation be not sufficiently apparent from this statement of it, as showing if true, that Mobley was a party with others, to a conspiracy to injure the appellant by swearing against him, and breaking him down, and therefore, rendering his detention and confinement on that charge legal and proper, until he gave bail to appear and answer it. But the materiality of this testimony is expressly averred in these terms: “And the jurors aforesaid, upon their oath aforesaid, do further present, that it then and there became necessary and material that the said Judge of the said Court, should know whether the said” named *208 parties,did enter together the said saloon” at the time testified to by the appellant, 44 and whether having entered as aforesaid, they did then and there, in the said saloon, agree to break down the appellant, and swear against him, and did then and there enter into a conspiracy against him.” This averment immediately fol■lows those already stated, and its sufficiency has been strenuously assailed upon the ground that it omits to state in totidem verbis, that it became necessary and material for the Judge to know this in the matter of the inquiry then depending before him. The argument is that for anything that appears in the indictment, it might have been material and necessary for the Judge to know it in some other matter. In support of this position we are referred to the case of Regina vs. Bartholomew, 1 Carr. & Kir., 366. That was an indictment for perjury by a 'witness in. evidence given by him before a magistrate, (Thomas Scott,) upon an information against one Liver-such, for trespassing in search of game. The indictment after stating the information, and that the defendant was sworn, and stated on oath that he did not see Liversuch on the 12th of August, 1843, alleged the materiality thus: 44 And the jurors, &c., further present, that at the time, &c., the said ” defendant 4 4 swore as aforesaid, it was material and necessary for the said Thomas Scott, so being such justice as aforesaid, to inquire of and be informed by the said” defendant, whether he did see Liversuch during the said 12th day of August, in the year aforesaid. In deciding this averment to be defective, the Court said to the defendant: 44It is not stated that it was a material and necessary question in the inquiry before the said Thomas Scott, to which you gave the false and corrupt answer. It may have been, therefore, consistently with the averments in this indictment, material and important for Thomas Scott in some other matter, and not in the matter stated to be in issue before *209 him, to have put this question, and received this answer. How, as the offence of perjury consists in taking a false oath in a matter stated to be in judgment, before a Court or person having competent authority to decide it, and as this indictment does not clearly and distinctly charge that, it does not charge the offence of perjury.” That decision though entitled to great respect, is not a binding authority upon this Court, and we are unwilling to adopt it as the law of this State. To accept and apply the reasoning upon which it is founded, to the case before us, would, in our judgment, be pushing the exaction of certainty in indictments beyond all reasonable limits, and require them to be cumbered with constant repetitions. This indictment states what the pending inquiry was, and how it arose; that it was entered upon and while being conducted, the appellant appeared as a witness therein, was affirmed to give evidence in the matter then depending, and in answer to questions propounded to him in the matter then and there depending before the said Judge, made statements as to the acts and declarations of certain named parties, as it is then averred, that it then and there became necessary and material for the said Judge to know, whether these acts and declarations were done and made, lu the face of these averments, we are asked to say there might have been then and there some other matter in which it became necessary and material, the Judge should know and be informed respecting these same acts and declarations. We cannot do this without disregarding the spirit if not the letter of the Statute of 23rd Geo., 2, as well as the very sensible observations of Sir Matthew Hale, which have received the endorsement and approval of our predecessors in the case of State vs. Deni, 3, C. & J., 11. In our opinion, the materiality of the false testimony to the siibject of the pending inquiry, is averred with sufficient distinctness and clearness.

14

v. 38.

*210 (Decided 25th June, 1873.)

3rd. Another objection is that the affirmation under which the false testimony was given is, as stated in the indictment, defective. The averment is that the appellant did before the said Judge, (who had competent authority to administer the same,) “ in due form of law, solemnly and sincerely declare and affirm that the evidence that he should give in the matter depending before the Court, should'be the truth, the whole truth, and nothing but the truth,” It is contended he should have been affirmed to give evidence in the matter depending before the Judge. But in our judgment, this is a departure from the exact words of the proper affirmation, in matter not of substance, but of form merely, and does not exempt the appellant who made it from the pains of perjury, if under it he wilfully gave false testimony material in the inquiry then depending before the Judge out of Court. Under this averment, it was admissible to prove that the affirmation actually administered was in the form in which it is insisted it should have been, or in any other form substantially the same, as for instance “in the matter now depending,” Without stating either “before the Court,” or “before me” or “before the Judge.” In neither case would the variance be material.

What we have said in disposing of the objections above stated, appears to us to cover the entire case. No others have been presented which require any special notice. We have carefully examined the indictment and though we find it in some respects inartificially drawn, we are yet of opinion, looking to the whole body of it, that it contains all the essential requisites of a good and sufficient indictment for the perjury assigned.

Ruling and judgment affirmed, and cause remanded.