State v. John W. Smith
| Decision Date | 01 October 1890 |
| Citation | 22 A. 604,63 Vt. 201 |
| Parties | STATE v. JOHN W. SMITH |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER, 1890
Judgment reversed pro forma, demurrer overruled, first count of indictment adjudged sufficient, and cause remanded.
Geo W. Wing, and Dickerman & Young, for the respondent.
The respondent claims that the common law offence of perjury does not exist in this State, and that the indictment is not sufficient under the statute. These claims are based upon a construction of R. L. 4262, 4263, which read as follows:
S 4262. A person who being lawfully required to depose the truth in a proceeding in a court of justice commits perjury, shall be imprisoned in the State prison not more than fifteen years, and fined not more than one thousand dollars
S 4263. A person of whom an oath is required by law, who wilfully swears falsely in regard to any matter or thing respecting which such oath is required, shall be guilty of perjury and punished as provided in the preceding section.
It is claimed that these provisions constitute a general revision of the law relating to perjury, and repeal the common law upon the subject by implication. The general rule is that an affirmative statute is an addition to the law, and repeals no existing provision unless manifestly repugnant to it. But in several States it is held that where a statute covers the whole ground occupied by a previous statute or by the common law, it repeals the prior law, even though there be no repugnance. The courts of this State have recognized the exception, and have stated the doctrine to be, that a repeal is effected without express words where the new law revises the whole subject matter of the former one, and is evidently intended as a substitute for it. Bish. St. Cr. ss. 154, 159; Farr v. Brackett, 30 Vt. 344.
But this doctrine cannot avail the respondent unless it be held that the crime mentioned in s. 4262 is defined in the succeeding section. It is only upon such a construction that the statute can be claimed to cover the whole ground of the common law. But we think it is evident that these two sections are independent provisions. S. 4262 relates to the common law offence of perjury, referring to it by name, and leaving it to be defined by the common law. S. 4263 is not a statutory definition of the crime mentioned in s. 4262, but is a provision making that perjury which was not perjury at common law. This provision was evidently designed to cover the numerous instances where the statute requires a verification by oath in matters not connected with judicial proceedings. A like construction has been given to similar sections in Massachusetts. Jones v. Daniels, 81 Mass. 438.
The respondent also refers to R. L. 4334; and urges that perjury was a misdemeanor at common law and is now a felony by statute, and that when the statute makes that a felony which was before a misdemeanor, the old law ceases to exist because of the repugnance. This claim of repugnance is evidently based upon the view of counsel that the statutory crime of perjury established by s. 4263 embraces the common law offence. Under the construction above given this section, the claim is without support. With s. 4263 so construed, there remains no statutory provision between which and the common law the question of repugnance can arise. S. 4262 simply fixes the penalty for the common law offence, and s. 4334 declares that an offence so punished shall be felony.
So the common law relating to perjury is in force, and the indictment is sufficient if good at common law. But the respondent insists that the indictment is defective as a common law indictment in several respects.
It is alleged to have been a material question on the trial whether Fuller signed and delivered a certain paper. The respondent is charged only with testimony as to the signing. It is claimed that the signing without delivery is not alleged to have been material. We think no difficulty arises here. It clearly appears that testimony as to the signing alone would be material. If the respondent swore falsely as to that, he swore falsely upon a material point.
The respondent is stated to have testified that he saw Fuller sign his name to the paper. The assignment of perjury is that Fuller did not sign his name to the paper. It is claimed that this assignment is indirect and argumentative. It is claimed that this assignment is indirect and argumentative. It is certain that the contradiction is complete. If Fuller did not sign the paper, the respondent could not have seen him sign it. The testimony related to a single visible act which the respondent claimed to know was done because he saw it done. In such a case we think a denial in this form is permissible.
A statement that an act was not done seems a sufficient denial of the testimony of one who says he saw it done. And it has been so held. Commonwealth v. McLaughlin, 122 Mass. 449.
The disposition of this point makes it unnecessary to consider the statement of testimony and assignment of perjury in relation to the presence of Fuller at the place where the paper was claimed to have been executed. It is well settled that if one assignment is sufficient, improper assignments in connection with it will not vitiate the indictment. 2 Chit. Cr. Law 312; Commonwealth v. Johns, 72 Mass. 274.
It is also said the testimony is in no way alleged to have been falsely given. The word "falsely" does not appear in its usual connection with the words "wilfully and corruptly," and it is claimed there is nothing in the indictment to make good the omission. There is ample authority for saying that the use of the word "falsely," in connection with the statement of testimony, is not essential. But it must undoubtedly appear from some proper averment that the testimony was falsely given.
The State insists that the false swearing is averred in the assignment of the perjury. The indictment is based upon the form found in Sec. 871 of Mr. Bishop's Directions and Forms. The draftsman followed the form in dispensing with the word "falsely" in stating the testimony, but departed from the form in omitting the words "as he then and there well knew," in the assignment. These words, ordinarily used in cases where the testimony was expressed to be upon belief, would doubtless have supplied all the force which is claimed for the word "falsely." The respondent insists that with these words omitted the assignment does not fully cover the ground. The question thus presented is, whether the falsity of the testimony is sufficiently charged by the assignment of perjury, without using the words "as he then and there well knew."
It is one thing to say that a statement is not in accordance with the truth, and another thing to say that the matter has been designedly misstated. In one case we indicate the nature of the thing stated; in the other we characterize the act of the...
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