REQUISITES IN Falsehood must be material. What matters are pertinent to issue. Breach of cath of promise not perjury. PUNISHMENT. law, to secure that what was taken down was truly sworn to (1). Sixth, the statements must be material (2); they must be either statements of fact pertinent to the matter in question, or pertinent to the question of the party's own qualification to make the oath, or credibility in making it. A witness may commit perjury either on examination in initialibus or in causa, if he swear falsely that he has not been bribed, or that he has not been convicted of a crime (3). Again, if witnesses be brought to swear falsely against the character or conduct of other witnesses, they will not be heard to say that their evidence was not pertinent to the issue. A person who tries to discredit another witness, by telling falsehoods against him, is deponing as pertinently to the issue as if he swore the contrary of what the witness had said in causa (4). Seventh, the oath must be of fact or belief, not of promise. Breaking an oath of allegiance or breach of trust by one who has sworn to be faithful in his office, is not perjury (5). The punishment is penal servitude or imprisonment, to which is added a declaration of infamy and incapability of holding any public trust or office, or of passing on any inquest or assize (6). MINOR OFFENCES, BY MAKING FALSE OATHS OR AFFIRMATIONS. BETWEEN PER OFFENCE. under Reform Although in certain oaths or solemn affirmations re- DISTINCTION quired by law, there is no appeal to the Deity, and, JURY AND MINOR therefore, where falsehood is committed there can be No appeal to no charge of perjury (1), unless under special statutory Deity. provision; still such acts are punishable as frauds. Thus, "Wickedly, wilfully, and knowingly swearing, False declaration or making falsely and fraudulently, an oath or a Act. declaration, by Act of Parliament ordained to be "taken or made on due requisition as the condition "of exercising the right of voting in the election of a "member to serve in the Commons House of Parlia"ment," has been held a relevant charge (2). Such offences are punishable arbitrarily. SUBORNATION OF PERJURY. PUNISHMENT. OFFENCE. lowed by deposi If A instruct B how to depone in a judicial pro- REQUISITES OF ceeding to defeat justice, subornation of perjury is Instruction folcommitted, if B so depone (3). It is not necessary tion. that what B is to say is concocted expressly between him and A, or is even untrue in fact. It is sufficient if A give B a written statement, in accordance with which he induces him to depone, without inquiry as to whether B knew the truth of what he was thus asked to swear to (4). And it is of no moment by what Mode of subornmeans the subornation is accomplished, whether by quence. 1 See the case of Nathan M'Lachlan, H.C., July 17th 1837; 1 Swin. 528 and Bell's Notes 94, where such a charge was abandoned. 2 John Barr, H.C., Jan. 23d 1839; 2 Swin. 282 and Bell's Notes 94. Many British statutes provide for the absence of a common law power of prosecuting such offences in Eng land or Ireland, by declaring them 4 Hume i. 381, and case of Hay ing of no conse REQUISITES OF enticements, or promises, or threats, or even by actual OFFENCE. ATTEMPT TO violence (1). If a witness resist the attempt to induce him to swear a false or concocted story, or if the false deposition be never emitted, the suborner is liable to punishment for the attempt, if overt and serious (2). No defer.ce that It is no defence to a charge of attempting to suborn, that the attempt was made in reference to a process which, though contemplated, has never been brought into Court (3). attempt related only to an intended process. PUNISHMENT. Subornation and attempt to suborn are both punishable with penal servitude or imprisonment. In the case of subornation, there may be added to the sentence a declaration of infamy, and incapability of holding any public trust or office, or of passing upon any inquest or assize (4). SCOPE OF TERM Defeat of any legal warrant. DEFORCEMENT. Deforcement consists in forcibly preventing officers of the law or their assistants from carrying out a legal warrant of any judicatory (5), provided it be such as may be lawfully issued therefrom (6), and be free Previous irregu- from substantial irregularity (7). If the warrant be regular, informality in the proceedings from which it larity in of no consequence. 1 Hume i. 381, and cases of Hay: 2 Hume i. 381, 382, and cases of 3 Hume i. 383. 4 Hume i. 381.-Rob. Walker, H.C., March 19th 1838; 2 Swin. 69 and Bell's Notes 101.-In this case the sentence included a declaration of inability to give evidence, but this is now superseded by the Act 15 Vict. c. 27. 5 Hume i. 396 and cases of Forbes: M'Neil: and Sinclair there, and case of Costine in note 3.Alison i. 505. 6 Alex. Whitelaw and Thos. Bisset; Bell's Notes, 102. 7 Alex. Maclean and Malcolm M'Gillivray, Inverness, Sept. 25th 1838; 2 Swin. 185 and Bell's Notes 103. Crawford v. Wilson and Jamesons, Nov. 19th and 24th 1838; 2 Swin. 200 (Lord Moncrieff's opinion) and Bell's Notes 103. DEFORCEMENT. warrant. in special duty. has its origin is of no consequence (1). The case of SCOPE OF TERM deforcement of revenue officers is peculiar, as in their ordinary duties they are not required to be in pos- Revenue officers session of a warrant, and it is therefore no defence require no against a charge of deforcing revenue officers, to allege that they had no warrant (2). But where revenue Unless engaged officers proceed to perform such duties as require a special warrant, such as breaking open doors, they cannot be deforced unless they had a warrant (3). does not appear that in any other case, except that revenue officers, it is deforcement to resist and defeat warrant. officers where there is no formal warrant. Hume and Alison lay it down that deforcement "lies only in the "hindering of those formal and solemn proceedings It question whether deforcement in of any other cases (actus legitimi) which take place under regular and "written authorities" (4). The exception made seems to rest on the excise statutes, which import a general and continuous warrant. In no case of arrest of a criminal detected in the act, and without a warrant, has a charge of deforcement been laid. Where water bailiffs attempted to arrest salmon poachers, and were overcome, the charge of deforcement was found irrelevant (5). where there is no of military The term deforcement is applicable only to civil No deforcement affairs. It is not deforcement to rescue a prisoner escort. 1 Hume i. 200 (in reference to privileges in cases of homicide, but the principles are equally applicable to deforcement).-Alison i. 501, 502. -In one case decided on Circuit (Jacob Tait and John Taylor, Jedburgh, April 16th 1851; J. Shaw 475) it was held fatal that the warrant, though ex facie regular, was founded on a conviction, the summons on which the conviction proceeded never having been duly served. But it is thought that this decision was contrary to principle. The officer is entitled to protection 2 Peter Hamilton and Jas. Jamie- 3 Margaret Stewart or Cook and others, Inverary, April 17th 1856; 2 Irv. 416. 4 Hume i. 387.-Alison i. 493. 5 Hume i. 396, case of Little and others in note 2. SCOPE OF TERM from a military escort, not acting under the civil power (1). DEFORCEMENT REQUISITES OF Officer duly Can citizen ordered to exe cute warrant be deforced. Officer must be actually executing duty, begin. First, the officer must be vested in his office, and competent thereby to execute the warrant or diligence (2). It is doubtful whether a private individual, to whom a warrant is addressed, is an officer, to the effect of making resistance to him constitute deforcement (3). It Second, the officer must be engaged in a solemn official duty (4), and be executing it at the time. is not deforcement if, before he has got to the place, or if, after he has done his duty, or given up the attempt to do it, and is returning, he is attacked (5). Or just about to But it is deforcement if the officer, being at the place, and about to perform his duty, is prevented by violence, or threats of violence, from taking even the first step. If, on approaching a house to arrest, or entering a field to poind cattle, he be attacked or threatened with violence, by those who know his errand, it is not the less deforcement that he has been prevented from beginning to execute his duty (6). Must proceed duly, and make known his quality, Third, the officer must proceed duly and correctly. He must make known his office, which constables and messengers do by displaying blazon and baton (7). Unless already But this solemnity is not necessary if he is known to the parties as an officer, or their conduct show that they know his quality (8). He must notify his known. 1 Geo. Mill and others, Jedburgh, Sept. 16th 1839; 2 Swin. 444 and Bell's Notes 103. 2 Hume i. 386.-Alison i. 491, 492, and case of Graham and others there. More ii. 402. 3 Hume i. 387.-Alison i. 491, 492. 4 Hume i. 387.-Alison i. 493. -i. 505. 5 Hume i. 387, 388, and cases of Wallace and Hay there.-Alison i. 493, 494. 6 Hume i. 388, 389, and cases of M'Neil and others; Sutherland and others and Campbell there.-Alison i. 494, 495, and case of Wallace there. 7 Hume i. 389.-Alison i. 495, 496. More ii. 402. 8 Hume i. 389, 390, and cases of Yule: Elphinston: and M'Neil there; and cases of Kinnaird: and Harse v. Fork in note 1. |