beat the prosecutor on the head with similar sticks. Holroyd, J. told the jury, that as the prisoner had used the stick as a weapon of offence, he thought it ought to be considered as an offensive weapon; and the jury having convicted the prisoner, the judges agreed with Holroyd, J., and held the conviction right. (p) And in a similar case on the 9 Geo. 4, c. 69, s. 9 (the Night Poaching Act), it was held to be a question for the jury whether the prisoner had taken out a stick, large enough to be called a bludgeon, which he, being lame, was in the habit of using as a crutch, with intent to use it as an offensive weapon, or merely for the purpose to which he usually applied it. (9) From a case upon the same repealed statute (7 Geo. 2, c. 21), where the indictment was for assaulting with a certain offensive weapon called a wooden staff, and the evidence proved a violent blow with a great stone, as it was holden that the conviction of the prisoner was proper, it appears to follow that both a wooden staff and a great stone were considered as offensive weapons within the meaning of that statute. (r)

The term, weapon, would seem to include any instrument of metal or wood, or any club, stone, or other thing which is had for the purpose of effecting an injury on the person, according to the doctrine of the Roman law, Teli appellatione et ferrum, et fustis, et lapis, et denique omne quod nocendi causâ habetur, significatur. (s)

As to the assembling, it was determined upon the repealed statute (19 Geo. 2, c. 34), that it must be deliberate, and for the purpose of committing the offence described in the statute. So that where a set of drunken men came from an alehouse, and hastily set themselves to carry away some Geneva which had been seized by the excise officers, it was thought very questionable whether the object which the Legislature had in view could be extended to such a case; and the Court said, that the words of the statute manifestly alluded to the circumstance of great multitudes of persons coming down upon the beach of the sea for the purpose of escorting uncustomed goods to the places designed for their reception. (t)

Upon a clause of the repealed statute (9 Geo. 2, c. 35, s. 26), by which it was enacted, that an assault committed upon any of the officers of the customs and excise should be tried in any county in England, in such manner and form as if the offence had been therein committed, it was decided that the provision extended only to revenue officers, qua officers: and a defendant having been found guilty, on an indictment, of a common assault on the prosecutor, who was an excise officer, the Court of King's Bench arrested the judgment, though the prosecutor was described to be an excise officer, the offence being laid in Surrey, and the venue in Middlesex. (u)

(p) R. v. Johnson, Mich. T. 1822. R. & R. 492

(q) R. v. Palmer, 1 M. & Rob. 70. Taunton, J. See post. Night poaching.

(r) Sherwin's case, Oakham. 1785, 1 East, P. C. c. 8, s. 13, p. 421. The ground upon which the judges held in this case, that the evidence was sufficient to maintain the charge in the indictment, was that the weapon laid in the indictment, and the weapon proved, produce the same sort of mischief, viz., by blows and bruises; and that the description would have been sufficient in an indictment for murder.

(s) Heinec. Antiq. Tit. 1, s. 9.

(t) Hutchinson's case, 1 Leach, 343. The Court offered the Attorney-General a special verdict upon this case: but he declined to take it, and the prisoners were acquitted. This construction of the statute as to the assembling being deliberate, and for the purpose of committing the offence, is stated to have been adopted by Willes, J., and Hotham, B., in Spice's case, Old Bailey, December, 1785, and by Heath, J., in Gray's case, Old Bailey, July in the sameyear. 1 Leach, 343, note (a).

(u) R. v. Cartwright, 4 T. R. 490.

CHAPTER THE ELEVENTH.

OF HINDERING THE EXPORTATION OF CORN, OR PREVENTING ITS CIRCULATION WITHIN THE KINGDOM.

By the 11 Geo. 2, c. 22, s. 1, persons hindering the exportation of corn by violence may be dealt with summarily by two justices of the peace. (a)

By sec. 2, if any person or persons shall wilfully and maliciously pull, throw down, or otherwise destroy, any storehouse or granary, or other place where corn shall be then kept in order to be exported; or shall unlawfully enter any such storehouse, granary, or other place, and take and carry away any corn, flour, meal, or grain therefrom; or shall throw abroad, or spoil the same, or any part thereof; or shall unlawfully enter on board any ship, barge, boat, or vessel, and shall wilfully and maliciously take and carry away, cast or throw out therefrom, or otherwise spoil or damage, any meal, flour, wheat, or grain, therein intended for exportatation;' every such offender being convicted, shall be adjudged guilty of felony, and transported (b) for seven (c) years. (d)

By the 36 Geo. 3, c. 9, s. 1, persons using violence to deter others from buying corn within the kingdom, or stopping any corn, breaking waggons, &c., carrying corn, or taking off the horses, or beating the drivers, or scattering or taking corn, may be summarily convicted.

By sec. 2, 'if any person or persons with intent to prevent or hinder any corn, meal, flour, malt, or grain, from being lawfully carried or removed from any place whatsoever, shall wilfully and maliciously pull, throw down, or otherwise destroy any storehouse or granary, or other place, in which corn, meal, flour, malt, or grain, shall be then kept; or shall unlawfully enter any such storehouse, granary, or other place, and take and carry away any corn, flour, meal, malt, or grain, therefrom; or shall throw abroad or spoil the same or any part thereof; or shall unlawfully enter on board any ship, barge, boat, or vessel, and wilfully and maliciously take and carry away, cast, or throw out therefrom, or otherwise spoil or damage, any corn, flour, meal, malt, or

(a) Sec. 3 provides that attainder shall not work corruption of blood, loss of dower, or disinheritance; and by sec. 4, no person, who shall be punished for any offence by virtue of this Act, shall be punished for the same offence by any other law or statute. Secs. 5, 6, 7, and 8, relating to actions by persons against the hundred for damages done to their properties, are repealed by the 7 & 8 Geo. 4, c. 27; and so much of this

grain therein;' every person so offending, and being convicted, shall be adjudged guilty of felony, and be transported (e) for seven (ƒ) years; and if such offender shall return into this kingdom before the expiration of the seven years, he or she shall suffer death as a felon without benefit of clergy. (g) The section further provides that attainder shall not work corruption of blood, loss of dower, or disinheritance of heirs. And by the sixth section it is provided that nothing contained in the Act shall abridge or take away any provision already made by the law of the realm, for the suppression or punishment of any offence whatsoever, mentioned or described in this Act; and it is provided also, that no person who shall be punished by virtue of this Act shall be punished for the same offence by virtue of any other law or statute whatsoever. (h)

By the 24 & 25 Vict. c. 100, s. 39, 'Whoever shall beat, or use any violence or threat of violence to any person, with intent to deter or hinder him from buying, selling, or otherwise disposing of, or compel him to buy, sell, or otherwise dispose of, any wheat or other grain, flour, meal, malt, or potatoes, in any market or other place, or shall beat or use any such violence or threat to any person having the care or charge of any wheat or other grain, flour, meal, malt, or potatoes, whilst on the way to or from any city, market-town, or other place, with intent to stop the conveyance of the same, shall, on conviction thereof before two justices of the peace, be liable to be imprisoned and kept to hard labour in the common gaol or house of correction for any term not exceeding three months: provided that no person who shall be punished for any such offence by virtue of this section shall be punished for the same offence by virtue of any other law whatsoever.'

(e) See note (b), supra.

(See note (c), supra.

(g) See 4 & 5 Will. 4, c. 67.

(h) Secs. 3, 4, and 5, relating to proceedings against the hundred for damages done to the properties of persons, by offender against this Act, are repealed by the 7 & 8

Geo. 4, c. 27, and the Stat. Law Rev. Act 1871. And so much of this statute as relates to any person who shall beat, wound, or use any other violence to any person or driver, and so much thereof as makes any second offence felony, is repealed by the 9 Geo. 4, c. 31.

CHAPTER THE TWELFTH.

1

OF PERJURY AND SUBORNATION OF PERJURY.2

At common law. Perjury by the common law appears to be a wilful false oath by one who, being lawfully required to depose the truth in any proceeding in a court of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not. (a)

Subornation of perjury by the common law is an offence in procuring a man to take a false oath amounting to perjury, who actually takes such oath. But it seems clear that if the person incited to take such an oath do not actually take it, the person by whom he was so incited is not guilty of subornation of perjury, yet it is certain that he is liable to be punished, not only by fine, but also by infamous corporal punishment. (b)

An indictment charged that the defendant, an attorney, being retained to defend Wood against a charge of picking Lewis's pocket, deceitfully procured himself to be employed by Lewis, and persuaded Lewis to swear before the grand jury that he did not know who picked his pocket, which he did, and no bill was returned. An objection was made that Lewis's evidence was not stated to have been false; but, upon a case reserved, the judges thought it unnecessary, as the defendant's crime was the same, unless he knew it to be true, and that he should have proved. (c)

The false oath must be wilful, and taken with some degree of deliberation; thus if it appears that it was occasioned by surprise, or inad

(a) 1 Hawk. P. C. c. 69, s. 1. 3 Inst. 164. Com. Dig. tit. Justice of Peace, B. 102. Bac. Ab. tit. Perjury.

(b) 1 Hawk. P. C. c. 69, s. 10. Bac. Ab. tit. Perjury, and the authorities there cited.

AMERICAN

1 See P. v. Evans, 40 N. Y. 1; Rump v. C., 6 Casey, 475; P. v. Sweetman, 3 Parker, C. R. 358; Cathran v. S., 39 Miss. 541; Chapman v. Gillett, 2 Conn. 40; Shaffer v. Kintzer, 1 Binn. 543; S. v. Hanson, 39 Maine, 337; S. v. Beard, 1 Dutch. 384; S. v. Kennerly, 10 Rich. (Laws) 152; S. v. Lamont, 2 Wis. 437; C. v. Powell, 2 Met. (Ky.) 10. In some States in America perjury is a felony. In some States statutes have been passed against 'false swearing' rendering persons making false declarations upon oath liable to indictment. Bishop, vol. ii., ss. 1014, 1054. Perjury against the

(c) R. v. Edwards, East. T. 1764, MS. Bayley, J. And as to dissuading witnesses from giving evidence, see ante, p. 197.

NOTES.

United States must be tried in a United States Court, not in a State Court. Bishop, vol. ii., ss. 1022 et seq.

2 In America there are statutes regulating this offence, and false swearing not always being there perjury, a procuring of such false swearing is not subornation of perjury, S. v. Wymberley, 40 La. An. 460. Both the suborner and the suborned must know the testimony to be false, and the former must know that the latter knows it to be false, otherwise there is no corruption. U. S. v. Evans, 10 Saw. 132, 19 Fed. Rep. 912; Coyne v. P., 124 Ill. 17, 7 Am. St. 324.

vertency, or a mistake of the true state of the question, it cannot be considered to amount to voluntary and corrupt perjury. (d)

It has been said that no oath will amount to perjury unless it be sworn absolutely and directly, and, therefore, that he who swears a thing according as he thinks, remembers, or believes, cannot, in respect of such an oath, be found guilty of perjury. (e) But De Grey, C. J., appears to have laid down a different doctrine. (f) And Lord Mansfield, C. J., is stated to have said, 'It is certainly true that a man may be indicted for perjury in swearing that he believes a fact to be true which he must know to be false.' (g) It is further said that, upon this question being agitated in the Court of Common Pleas, all the judges were unanimous that belief was to be considered as an absolute term, and that an indictment might be supported upon such a statement.(h) An indictment for perjury alleged that the defendant swore that he thought that certain words written in red ink were not his writing; whereas the defendant, when he so deposed, thought that the said words were his writing; and the Court of Queen's Bench held that the assignment was sufficient. If a witness swore that he thought a certain fact took place, it might be difficult indeed to show that he committed wilful perjury. But it was certainly possible, and the averment was as properly a subject of perjury as any other. (¿)

The important requisites in a case of perjury appear to be these: the false oath must be taken in a judicial proceeding, before a competent jurisdiction, and it must be material to the question depending. (j)

With respect to the falsity of the oath it should be observed, that it has been considered not to be material whether the fact, which is sworn, be in itself true or false; for, howsoever the thing sworn may happen to prove agreeable to the truth, yet, if it were not known to be so by him who swears to it, his offence is altogether as great as if it had been false, inasmuch as he wilfully swears that he knows a thing to be true which at the same time he knows nothing of, and impudently endeavours to induce those before whom he swears to proceed upon the credit of a deposition which any stranger might make as well as he. (k)

The oath must be taken either in a judicial proceeding, or in some other public proceeding of the like nature, wherein the King's honour or interest are concerned; as before commissioners appointed by the King to inquire of the forfeitures of his tenants, or of defective titles wanting the supply of the King's patents.

(d) See 1 Hawk. P. C. c. 69, s. 2. (e) 3 Inst. 166.

(f) Miller's case, 3 Wils. 427. 2 Black. Rep. 881.

(g) Pedley's case, 1 Leach, 325.

(h) Anon. C. P. Mich. T. 1780. 1 Hawk. P. C. c. 69, s. 7, note (a), p. 88 (ed. 1795). See R. v. Crespigny, 1 Esp. 280. Lord Kenyon, C. J.

(i) R. v. Schlesinger, 10 Q. B. 670.

But it is not material

(j) By Lord Mansfield, C. J., in R. v. Aylett, 1 T. R. 69.

(k) 1 Hawk. P. C. c. 69, s. 6. R. v. Edwards, cor. Adams, B., Shrewsbury Lent Ass. 1764; and subsequently considered of by the judges, MS. And see per Lawrence, J., in R. v. Mawbey, 6 T. R. 619. 2 Rolle Abr. Indictment (E), pl. 5, p. 77. Allen v. Westley, Hetley, 97. Gurney's case, 3 Inst. 166. See R. v. Newton, 1 C. & K. 469, for a count framed to meet such a case.1

AMERICAN NOTE.

1 See Bishop, s. 1048, citing S. v. Gates, 17 N. H. 373; Byrnes v. Byrnes, 102 N. Y. 4 ; S. v. Knox, Phillips N. C. 312.