#### The State v. Keziah Mumford,

From Anson.

In an indictment for perjury, it is sufficient to charge generally, that the false oath was material to the trial of the issue upon which it was (alcen ; it is not necessary to show particularly, the manner in which it was material.

A general averment falsifying the testimony, is not sufficient, every fact falsely deposed to must be distinctly negatived.

The Defendant was tried on the last Circuit before his honor Judge Norwood, upon the following indictment :

“ The Jurors &c. that heretofore &c. in &c. *K. M.*late &c. came before *Hugh McKenzie, Esq*then and yet being one of the Justices, &c. and then and there upon her oath, charged one. *Alfred JVoble*before the said *H. M.*the Justice &c. with having assaulted, stricken, and bruised one *Henry Mumford.*And the Jurors aforesaid, &c. do further present, that upon (he examination of the said *K. M.*before, &c. upon her oath aforesaid, touching and, concerning the alleged as*520sault by the said *Jl. N.*in and upon the said *Henry Mumford,*certain questions then and there became and were material, that is to say, whether *J>. N.*did strike her husband *Henry Mimford,*with a stick across ttle back at the last time he and,K. *P.*wresiled, and whether the blow, across the back with a stick, was given immediately as they dll'. And the Jurat's &c. do further present, that the said *K. M.*wickedly, devising and intending unjustly to aggrieve the said *Jl. N.*and procure him to be imprisoned, and kept in.prison for a long space of time,'on &c. at &c. before the said *H. M.*then being, &c. she the said *K. M.*did then and there take hir corporal oath, and was sworn upon the Hoi) Gospel of God, before the said *H. M.*Justice, &c. he the said *H M.*then and there having sufficient and competent power and authority, to administer an oath-to the said *K. M.*in that behalf, and that the said *K. M*not having &c but being moved, &c. then and there before the said *H. M.*Justice, &c. upon her oath &c. falsely, &c. did depose/say, swear, give and make information, among other things, in substance and to the effect following: that is to say, th.it-iVi.(meaning the said *Jl. N.)*did strike her-husband *Henry Mumford*with a stick across the back, at the last time he (meaning the said *Henry*Mumford,) and *V. P.*(meaning a certain *V. P.)*wrestled, and that the blow (meaning th • blow with the stick across the back of ihc said *Benry Mumford)*was given immediately as they (meaning the said *Henry Mumford*and the-said *-V. P.)*fell, whereas in truth and in fact, the said *A. N.*did not strike her husband *Henry Mumford*with a stick -icross the back, at the last time he, the said *Henry Mumford*and *V. P.*wresiled, and whereas in truth and in fact the blow was not given as they (the said *Henry Mumford*and the said *V. P.)*fell. And so the Jurors aforesaid, &c. &c.”

After a verdict for (lie State, the Counsel for the prisoner moved in arrest of judgment, contending that tiie assignment of perjury was not sufficiently certain, and in effect was nothing more than a negative pregnant ; liis Honor the presiding Judge, being of that opinion, arrested the judgment, whereupon *Mr. Solicitor Troy,*appealed.

No Counsel appeared for the Appellant.

*Devereuoc.*for the State,

cited *Rex*v. *Aylett,*(1 *T. II.*63) *Rex*v. *Atkinson, (Bacon Jib. Perjury*6) *Rex*v. *Fer-rol, {2 M. Sf S.*385) *Rex*v. *Bowlin,*(5 *T. R.*311, 318) Rexv.Griepe, *(Ld. Ray.*261) *Starkie’s Criminal Pleading,*134 — -2 *Cldtty’s Criminal Law,*309, *352, 353,*

*521Tayuor, Chief-Justice.

The objection taken in arrest of judgment, is founded on the assumption, that the only materia! enquiry before the Justice was, whether *Noble*had assaulted *Mumford,*or not, on the day specified, and that whether he struck him on the back, or not, at the last wrestle, was irrelevant, and unconnected with that question ; that the. assignment of perjury in the circumstances, is consistent witli the belief that the. Defendant might have sworn truly as to the principal fact, viz. the* assault. This presents two questions — whether the materiality of the enquiry is sufficiently stated in the indictment, and whether the assignment of peijury is properly and distinctly made ?

It is laid down as a rule, which I find no where controverted, that it should appear on the face of the indictment, that the oath taken was material to the question depending, not by setting forth the circumstances which, render it so, in describing the proceedings of a former trial, but by a general allegation that the particular question became material. In *Jly.lett’s case,*a leading one on this subject, it is stated, that it became a material question on the hearing of the complaint, and the hearing of that is stated in general terms. (1 *Term Rep.*66.) In the *King*v. *Dowlin,*the question was much debated. It is there stated, that the question became material on the trial, in the same general terms that it is stated, here; and the trial is referred to in, this manner, that “ at sucli a Court J. R. was in due form of law tried upon a certain indictment, then and títere depending against him for murder.” *Bowlin*was a w itness against J. R. on that trial, and the perjury was assigned, in his swearing, that “ he had never said he would be revenged of the said J. R. and would work his ruin.” On this part of the case, it was argued on behalf of *Bowlin,*that all those facts ought to be stated in the proceedings against J. R. which were necessary to show that the jurisdiction waB competent j that there was something to *522f>e fr¡e(] . t[le materiality of the question to that point, and the falsity of the oath. This objection is thus directly met by *Lord. Kenyon: “*But it has been objected, that it was necessary to set forth in the indictment,- so much of the proceedings of the former trial, as will show the materiality of the question on which the perjury is assigned. If it were necessary, and if the question arose on the credit due to the witness, the whole of the evidence given before must be set forth *;*but that has never been held to be necessary, it always having been adjudged to be sufficient to allege generally, that the particular question became a materia! question. But here it is averred, that the question on which the perjury was assigned, was a material question, and the Jury have found it so by their verdict.” (5 *Term Rep.*319.)

In this indictment, the warrant and examination before the Magistrate are stated, and the general allegation of the materiality of the question, is in conformity with the best forms, and considered in reference to the act on this subject, *(Rev. eh.*383) appears to me unexceptionable.

The matter sworn to by the Defendant, is contradicted in the assignment of perjury, specially and particularly, and in the words in which it was sworn. Á general averment upon the whole matter, that the Defendant falsely swore, is not sufficient: it should be specific and distinct, to tiie end that the Defendant may have notice of what he is to come prepared to defend. (2 *M.*& *S.*385.) And the whole matter of the Defendant’s false testimony must be set forth j and if the least part of one entire assignment be unproved, she could not be convicted. The offence charged, consists in the whole, and not in any one part of the assignment. And this, in my opinion, obviates the necessity of any opinion, as to how far perjury may be committed, if the false oath has a tendency to prove or disprove the matter iri issue, although but circumstantially ; or how far the fact sworn to, though not material to the issue, must have such a *523connexion with the principal fact, as to give weight to the testimony on that point. These views of the subject, could, in this case, only be properly presented to the Court trying the cause. I think the conviction is right.

Per Curiam. — Judgment reversed.