Fitch v. Commonwealth

• Decision Date: 06 February 1896
• Citation: 92 Va. 824,24 S.E. 272
• Parties: FITCH. v. COMMONWEALTH.
• Court: Virginia Supreme Court

24 S.E. 272

92 Va. 824

FITCH.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Feb. 6, 1896.

Pehjukt — Indictment — Plea in Abatement — Sufficiency—Jurisdiction.

1. A plea in abatement cannot be based on the fact that the crime was committed beyond the jurisdiction of the court, that being matter of defense under the general issue.

2. Under Code, § 3993, requiring an indictment for perjury to aver the substance of the offense charged, in what court or by whom the oath was administered, that such court or person was authorized to administer the oath, and matter of falsification, the indictment need not aver that the court trying the ease wherein the perjury is alleged to have been committed had jurisdiction thereof, or the facts showing such jurisdiction.

3. An indictment for perjury which avers that, on trial of a seduction case, the previous chaste character of the female became a material issue, and that defendant, on such issue, under oath, testified that he was with her at a certaiD house, "he thought." in January, 1893, and there had sexual intercourse with her, and then specifically negatives these statements, sufficiently shows the materiality of the false evidence.

4. An indictment, under Code, § 3741, providing that, if any person under oath "willfully swear falsely, " he shall be deemed guilty of perjury, which avers that defendant did "feloniously, willfully, and corruptly depose, swear, and testify, " without averring that he did so falsely, is insufficient, though the averment setting out matter of falsification concluded, "whereby" defendant did "feloniously, willfully, and corruptly swear falsely."

Error to hustings court of Staunton.

James A. Fitch was convicted of perjury, and brings error. Affirmed.

Braxton & Braxton, W. E. Craig, and J. H. Crozier, for plaintiff in error.

R. Taylor Scott, Atty. Gen., for the Commonwealth.

RIELY, J. It was not error to reject the plea of the plaintiff in error to the jurisdiction of the court. A plea in abatement, based upon the ground that the offense, if com-mitted at all, was committed beyond the jurisdiction of the court, is inadmissible. That is matter of defense under the general issue, the plea of "not guilty." The burden is just as great on the commonwealth to prove that the offense was committed within the jurisdiction of the trial court as it is to prove the commission of the offense itself. The failure to prove either entitles the accused to an acquittal. 1 Bish. Cr. Proc. § 414; Trem. P. C. 271; 2 Hale, P. C. 291; Richardson's Case, 80 Va. 124. It may be inferred from the plea that its object was to draw in question the right of the hustings court of the city of Staunton to try the accused for a crime committed in the court of the county, although the latter court, at the time of the offense, was being held at the courthouse of the county, which is in the said city, and within the territorial jurisdiction of its hustings court. All crimes are local, and must be tried in the court which has criminal jurisdiction over the locality where they are committed. The county court of Augusta county would have no jurisdiction of the offense, although committed in the court, for the reason that the offense took place outside of its territorial jurisdiction over crimes. The right to try the accused rested in the hustings court, within whose territorial jurisdiction the crime is charged to have been committed. So, in any view, the plea was invalid, and properly rejected.

One of the grounds urged in support of the demurrer to the indictment was that it does not aver that the county court of Augusta county, in which the perjury is charged to have been committed, had jurisdiction over the ease upon the trial of which the testimony alleged to be false was given. Perjury, at common law, is defined to be a willful false oath by one who, being lawfully required to depose the truth in any judicial proceeding, swears absolutely, in a matter material to the point in question, whether he be believed or not. 2 Chit. Cr. Law, 302; Hawk. P. C. c. 69, § 1; 3 Russ. Crimes, 1; 2 Bish. Cr. Law, § 890; Minor, Crimes & Pun. 138; Davis, Cr. Law, 224. The oath must bo administered by one having legal authority to do so, and in a judicial proceeding before a tribunal that has jurisdiction to try it; otherwise, the testimony given under the oath, although false, does not constitute the crime of perjury. 2 Bish. Cr. Law, § 984; Pickering's Case, 8 Grat. 628. It is a general rule that every indictment should explicitly charge all the facts and circumstances which constitute the crime, so that the court can certainly see, on the face of the indictment, as a question of law, afterwards, when these facts and circumstances are confessed or proved to be true, that the crime has been committed, and "behold upon the record an undoubted warrant for awarding the judgment of the law." It was, therefore, necessary, in an indictment for perjury at common law, to set forth the record of the cause upon the trial whereof the perjury complained of was charged to be committed, so as to show that the oath was administered in a judicial proceeding and by lawful authority, and also to show that the tribunal wherein the cause was tried had jurisdiction over it The jurisdiction of the tribunal must have been made to appear from the facts stated in the indictment, or the jurisdiction be expressly averred. This was indispensable. Pickering's Case, supra; Rex v. Dowlin, 5 Term R. 311; State v. Gallimore, 2 Ired. 372. These requirements caused indictments for perjury at common law to be set forth with much detail and great prolixity, resulting, often, by reason of inaccuracies, in the acquittal of guilty parties upon mere technicalities, and without regard to the merits of the case. To obviate these difficulties, and simplify indictments for perjury, the following statute was enacted in the time of George II. (23 Geo. II. c. 11): "In every information or indictment to be prosecuted against any person for willful and corrupt perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, and by what court or before whom the oath was taken (averring such court or person or persons to have 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." The effect of this statute was to dispense with the necessity of setting out the record or the facts to show the jurisdiction of the tribunal, or of alleging, in terms, that it had jurisdiction over the cause or proceeding in which the false testimony was given. It was thereafter held by the courts of England to be sufficient to set forth the substance of the offense, and the name of the court before whom the oath was taken, to aver that it had competent authority to administer the same, and to falsify, by proper averments, the defendant's assertions. 3 Russ. Crimes, 59; 2 Chit. Cr. Law, 287; Archb. Cr. Pl. & Prac. 1719; Lavey v. Reg., 79 E. C. L. 496; 2 Bish. Cr. Proc. § 914.

Many of the states have enacted the same or a like statute, and the same effect has been given to it by their courts as was done by the courts of England. 2 Bish. Cr. Proc. § 848. See, also, People v. Phelps, 5 Wend. 9; Campbell v. People, 8 Wend. 636; Com. v. Knight, 12 Mass. 274; State v. Ledford, 6 Ired. 5; State v. Davis, 69 N. C. 495; State v. Stillman, 7 Cold. 345. The state of North Carolina, in 1791, enacted a statute into which was incorporated the provisions of the statute of 23 Geo. II.; but it ceased for a short time to be a part of the statute law of that state in con-sequence of being omitted from their Revised Statutes through inadvertence or misapprehension. During the period of its suspension, the case of State v. Gallimore, 2 Ired. 372, came before the court. The same objection that is made to the indictment in this case was made to the indictment in that, and sustained; but Judge Gaston, in commenting on the statute, said: "The principal effect of this enactment was to substitute in the indictment the general averment of a competent authority to administer the oath in the place of a specific averment of the facts showing such authority, and to make the question whether the oath was or was not taken before a competent jurisdiction a compound question of law and fact, to be decided by the petit jury under the advice of the court. Since that act, the compendious form thereby authorized has generally been adopted, and if that act were yet in force we should have no difficulty in overruling the objection to this indictment." The statute of 23 Geo. II. was enacted too late to become a part of the laws we inherited from England (sections 2, 3, Code Va.), and was never in force in this state. Consequently, when the Case of Dodge, 2 Grat. 580, was decided, it was held that an indictment for perjury must still conform to the requirements of the common law. But, on January 19, 1846, the general assembly enacted substantially, and in almost identical words, the English statute, which has ever since been in force here, and now constitutes section 3993 of the Code. In adopting the English statute, it is to be taken that there was adopted, along with it, the interpretation put upon it by the courts of England. It follows, therefore, that it is now unnecessary in this state to set forth the record of the case upon the trial whereof the false testimony was given, or to aver the jurisdiction of the tribunal over it, but only necessary, instead thereof, "to state the substance of the...