Morrell v. People of State

• Decision Date: 30 November 1863
• Citation: 32 Ill. 499,1863 WL 3206
• Parties: LEWIS MORRELLv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

32 Ill. 499

1863 WL 3206 (Ill.)

LEWIS MORRELL

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

November Term, 1863.

ERROR to Circuit Court of Marion County.

Indictment for perjury, the averments of which, so far as they relate to the questions considered by the court, are “that Lewis Morrell, on the 19th of March, 1863, in the county of Marion, before Jacob O. Chance, clerk of the Marion circuit court, did then and there subscribe his name, and upon oath depose and say the statements contained in the affidavit, he so then and there subscribed his name, were true, said affidavit being a matter where by law an oath is required, to wit, an application for continuance of a cause then pending before said court, wherein the people were plaintiffs and said Lewis Morrell defendant. Indictment for obtaining United States treasury notes under false pretenses. Jacob O. Chance, as clerk aforesaid, having competent and full authority by law to administer the oath to said Lewis Morrell, all the matters charged as false in said affidavit being material in the application for continuance of said cause, and material to the point in question in said affidavit.”

The assignments of error were: (1) the refusal of the court below to quash said indictment for the reason that it contained no averment: ( a) as to the materiality of the facts deposed in said affidavit; nor ( b) that the court granted a continuance thereon; (2) in refusing a new trial moved for, on the ground that there was no evidence that J. O. Chance, before whom the affidavit was made, was the clerk of the circuit court.

Willard & Goodnow, for plaintiff in error.

Thomas S. Casey, State's Attorney, for defendant in error.

WALKER, J.

This was an indictment for perjury, averred to have been committed in swearing to an affidavit for a continuance of a cause in the Marion circuit court. A motion was entered in the court below to quash the indictment, which was overruled by the court. That decision, amongst other matters, is assigned as error. It is a familiar rule of pleading, that not only the falsity, but the materiality of the fact must appear from the averments in the indictment. It must also appear that the oath was administered by a person having competent legal authority, and that it was made in a judicial proceeding, or on some other lawful occasion, or for such a purpose. If the indictment be defective in any of these particulars, it is insufficient, and should, on motion, be quashed.

The affidavit in this case appears to have been made with a view to an application for the continuance of a cause then pending in the court below. But it does not appear from the averments in the indictment that such a motion had been made, or was afterwards interposed. Until such a motion was entered, this affidavit could not be material. If no such motion was ever made, it is not perceived how it could be material, in obtaining a continuance, or for any other purpose.

The averment in the indictment is this: “Said affidavit then and there being a matter where, by law, an oath or...