#### The Commonwealth v. Roach.

December, 1844.

Indictments—Demurrer to.—A demurrer to an indictment for perjury sustained.

The grand jury for the county of Jackson, at the fall term of the superior court of law and chancery for the said county, found an indictment for perjury against William Roach. The indictment stated, “that at the courthouse of Jackson county, on the 19th day of March in the year of our Lord Christ 1844, Nehemiah Smith and John Kouns, two of the justices of the *228peace in and for the county of Jackson aforesaid, attended and constituted a court for the trial of a complaint of John Armstrong against Andrew Davis and William Davis, for unlawfully turning him out of possession of a certain tenement, containing by estimation one hundred *and fifty acres of land, with the appurtenances, lying and being in the county aforesaid; that- William Roach, who claimed the aforesaid one hundred and fifty acres of land with its appurtenances, appeared in said court on the trial aforesaid, and moved the court for a continuance of said cause; and on this said motion for a continuance, the said William Roach took his corporal oath on the Holy Gospel of God before the said court, that he would true answers make to such questions as the court should ask concerning said motion for a continuance, they, the said Nehemiah Smith and John Kouns, justices as aforesaid, constituting and forming the court as aforesaid, then and there having sufficient and competent authority to administer the said oath to the said William Roach in that behalf; and thereupon said William Roach, on his oath aforesaid, did, wilfully, corruptly and falsely, of his own voluntary act, swear that Henry J. Fisher was his attorney engaged in said cause; that the said Henry J. Fisher was in possession of a paper material to the defence in said suit, which paper is to the tenor following:” (The paper was here set out at length, purporting to be an assignment to Roach by Thomas Carney, of his interest in the land; and then the indictment proceeded), “and that the aforesaid defendant could not go safely into trial without the production of the aforesaid writing from said Thomas Carney to said William Roach; and the jurors aforesaid, on their oaths aforesaid, do further present, that at and upon the motion aforesaid, it was a material question whether a continuance should be granted, or whether the said Andrew Davis and William Davis should be compelled on the day and year aforesaid to go into trial as aforesaid. And the jurors aforesaid, on their oath aforesaid, do further present, that the said William Roach, being so sworn as aforesaid, not having the fear of God before his eyes, nor regarding the laws of this Commonwealth, but being moved and seduced by the instigation of the devil, and contriving and intending to aggrieve the said John Armstrong, and unjustly to delay and hinder the due and speedy administration of justice, and to subject him the said John Armstrong to trouble and expense, did, then and there, on the motion for a continuance of said unlawful turning out of possession as aforesaid, upon his oath aforesaid, wilfully, corruptly, and by his own voluntary act, falsely and maliciously, before the said justices constituting a court as aforesaid, depose and swear, among other things, in substance and to the effect following; that is to say, that Henry J. Fisher was his counsel engaged in said cause, and that the paper assigning the possession as aforesaid to the said William Roach by the said Thomas Carney as aforesaid, was in the possession of the said Henry J. Fisher, when in fact and in truth the said Henry J. Fisher was not the counsel of said William Roach; neither was the paper assigning the possession as aforesaid in the possession of the said Henry J. Fisher, but was in truth and in fact in the possession of the said William Roach at the time of taking the oath aforesaid. And so the jurors aforesaid, upon their oaths aforesaid, do sa3r, that the said William Roach, on the occasion aforesaid, at the county of Jackson aforesaid, and within the jurisdiction of the circuit superior court of law and chancery for Jackson county, before the said Nehemiah Smith and John Kouns, constituting a court as aforesaid, which court had then and there competent power and authority to administer an oath to the said William Roach as aforesaid, by his own voluntary act and consent did wilfully, corruptly and falsely commit wilful and corrupt perjury, to the evil example of all others in like cases offending, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the Commonwealth.”

Roach demurred to the indictment. Whereupon the court, with the consent of the attorne3’- for the Commonwealth *and of the defendant, adjourned to this court the question, “What judgment ought to be given upon the demurrer to the indictment aforesaid?”

The attorney general, for the commonwealth.

Fisher, for the defendant.

By the court.

The court is of opinion, and doth decide, that the demurrer to the indictment ought to be sustained—which is ordered to be certified &c.