Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1866-04-26

aAAAAa6 VA ~ NtAa "AAr AAAN hAAN AA""f
Of defendants be held good, that the de,
murrer be oyerruled, and that the CUES
ton of fact, as 10 whether an agreement
or arrangement between the city and
county authorities for the keeping OF
! State prisoners at the stationhouse was
ever entered into, should be tried by a
jury, and that the coroner be ordered to
summon a competent jury to attend at
8 O'Clock this morning for that purpose.
The calendar for to-day is as follows A.:
- a. P. Burditt vs. Cook, Wood & Bowen.
46l. W. p Orne, Ext. vs. r.. g. Clarke e a.
l06l. Jas $. Wood IS Thus. broWh
IaT. Lacy & McGhee vs. Campbell & Norvllle.
/ 1888. +. r.. Hart rs J.. J. Jamison et al
1919. ). Butler, agent, vs. steamer lie Grand.
l07l- same " same.
1902. same " same.
illa- same VS. same.
II7E. same VS. anne.
1915. Nathan Peck, agent, vs. same.
iG76 same VS. same.
lJ-. II. Reynolds VS. same.
I07N " 3 Forrest vs. W u.
1913. II. NsSperman vs. j. W. Wlkers0n.
.JSl. A. Beatty vs. Henry Dean.
Ilsa RS AbfruatLy vs.. z. Whitney
1855. !. q. Horne vs. Gatharine hughes.
1859. Thos. A. Hamilton Us. W. X. Postou et. al
1920. Choteau 8 Edwards vs. J. J. Martin & Co.
1914 Chas. Miller vs. Chas. Frgely.
IJll. y. d. Elliott. Exr., vs.. A o. Schultz.
1877. Il. Laird vs. r. L. Laski.
In3s. Johu Erskine v. Summers & Dair.
I19g. LIKE & Russell vs.. Miles & Leonard.
IIOA BIZ = White ". Jos. SeIgmsn.
IlO5. Z. /. Iask VS. John Fisher.
HOS. G. A. =. Richardson NN.JOS. snow.
IU7. =. Guile vs.. Dr.. Perkins.
IlUs. Mrs. ". OstCrhsus VS.. Jerry Brown.
II5. James Jones, Jr "a. =, MsletestA.
ms. W. L. Porter rs p Hlggiu.
ms. + De + Morgan vs. c W Johnston.
lL1. Mary MaEEUuer vs.. John ". Wool.
U2 John CannoyHu, etc. EXT, vs. J. Groves.
Ul. John Erskin vs.. NJ. Summers.
n1i 6. T. Corbin vs. Henry Dean.
IfE. 10 CannOvaD, etc, TX rs Y D. Groves.
fT2l. Ellulael nea vs.. John Collins
usn. C. A Staakley " :. tolwrL
1871. Jas Hedermun a. lohn Bullock.
1884. ]. BorO vs. NJ. Morris.
M. 4. A. Stockley vs.. WIN. O'Hern.
Criminal Courf.-But one case was
tried in this Court yesterday, viz The
State vs.. Elizabeth Burns, l~aolored1,
charged with having committed perjury
by false swearing before the Freedmen's
Bureau. a motion was made by the
counsel for the defense 70 quash the in
dictment, for the reason that the officer
Of the Bureau before whom the crime IS
alleged TO have been committed was not
an officer authorized by law TO admins
ter oaths, and that, consequently, the Of
tense charged was not such a n as
would make the defendant liable to in
diciment for perjury. The opinion ofHis
Honor, Judge Hunter, is as follows:
The Indictment I'm THIS case Is preJiosted upon
testimony alleged % have been gwen 9y lhe
defendant upol an oath administers by an
officer OF what l. known A. tire hlreau tor we
relief OF freedmen aud refugees, esraoltshed by
an act OF the Congress of the United states,
psssel March 81. l>5t ana in e trl3l or pnoeeeo-
mo HafIra which she EeefLLHl IALsgfks
Tire code OF Tennessee defines perjury In the
following Language
ANY person who Wufully or corrupty swears
or aflrms falsely, in any U@ierlal matter upon
any 0atH or Affirmation requires OF ~sUih8nLeI
-TIfs ts1nFI5p Isl mon remarkable for brew
its Than clearness. D. Aus nothing To- and IN
terms takes nothing tr1m the definition
40 common law, but appears % oe an attempt
10 cover the ground. without setting forth the
essential Ingredients which constitute the
crime. Perury is defined by Lyrd Coke 90 be
rinistered by any that hath authority, 20 any
person in aJudleiW FroeeualhE VINO swtare,h
absolutely and falsely, ia 8 matter material %
the issue or cause IN question, by their pHn act
or g~uboruatiou Of others
To constitute perjury, &c Is essential that the
oath must % awful admlnlslered uy an outctf
having authority, 10 judicial proceeding, that
the statements must De- false ia a matter ma
farfaI 10 the issue Of the cause.
me oath must be administered by one nag
Ing legal authority otherwise there Is no per
in falsa testimony given under t.
F0r Tire sake OF 70 might IN this
case le conceded that the ~anguaHs nf the code
in declining the crime OF perjury would Be scel-
cheat in an Indictment which charged the Of
tense % have been committed In any
Court established by the Jaw OF this state.
Yet, when the ohense Is charged Z nave been
committed before a person NnoHh me Jaw "4gs
not rec euiye as a judicial officer, 10 must fol-
low that 8yeEg material TACT necessary y con
stitute the crime a. ootau92n law should DeaS-
The points arising in the. case are psIhPps
more numerous than 50 b. necessary % cFnEluer
m#HaH~ Hhn nraaHHAn hHHnHa as L few
will De sufficient.
Was tie Court before which The alleged PER
Jury was Committed, a tribunal possessing y1@l'
Did the onceT administering the oath have
authority 70 DO 80?
can the Courts OF Tennessee try and punish
for an ofense which, underline law Of the state,
% would be legally impossible 90 commit
The Indictment charges the onense 70 have
been before i. s. Garrett, Lieutenant
and Provost Marshal or Freedmen, assigned
snd authorized Dy the GoFernment Of the
United states, in pursuance az law 10 hear ana
datrrmfne all questions ams matters arising be-
tween freedmen and other persons, ETC. That
the SAID Lieut. Garrett had authority 70 admin
me Court cannot iudlcinlly know that a pro
yost marshal Of freedmen has embodied In has
person, by vluu Of his ONCE, all Of the ele-
ineuts and powers Of a Judicial tribunal and
uuless such IS the case the mere allegation that
had authority % administer the aatd oath -
sunlOisut- the SIMPLE power 20 admins
ter the oath, without the power % try and
punish the aroused 81 That proceeding, OF %
a preliminary examination TOT ALt NAf-
pose Of o-0mmitment hy authority Of laW from
fhe state OF nom the United States, could not
sustain an Indictment for perjury. 10 does not
from the tndlctmeEs nat the Bureau
must be show by setting ont the facls Mhlen
constitute sHch eurnorltys before Ane question
Of the materially Of the testimony can be enc
tertaiued.
In First Hawkins Pleas or the Crown, page
83l. 81 IS held by the author That nc oath
whafA0ever taken before persons acting IN a
private capacity. or before those who take upon
them to admlallter oathg Of a public nature
before those who are legally authorized % ad-
minister some kind Of OathE. hut not those
which happen 10 De taken before them, OF even
before those who take upon them 20 admins
ter justice hy virtue Of an authority seemingly 3
colorado, butin truth uaGarranted and merely I
void, can ever amount 70 peguuea n the eye OF
] have carefully examined the % Act 20 estab-
lsh a Bureau for the relief of Freedmen and
IeeiugeG, passed ny the tonEroFs orthe United
States and approved March 3, ls6a. and ] ind
therein no power OF authority even 90 admin
lister oat1s, much less TO exercise the functions 7
OF Judicial tribunal, and ifthere is any subse-
quent legislation extending the powers beyond 4
those conferred in that acI. ] have been uaable .
% md a. These are powers that cannot be as
summed OF implied they must be specially con-
The indictment also shows a state OF Facts in
case before the Bureau, IN which, under the I
Of Tennessee, Tie -uBlndant could not be
ian ms Court punish the defendant here for
a crime which, under the laws Of this State. Il
arou11 be legally impossible for her 70 cOmmtrP
I'D on the other hand, d. Is claimed that the
Indictment does not show that the dsfondantl Is I
\ uersou OF C1lor, the state Ia order 10 give the
Bureau Jurisdiction Of the proceeding in which
~ neuury is alleged % have been committed,
must show that 90 Is a tribunal established hy Z
Jaw. possessing al least the w. and bathoritY
"A committing magistrate. THIS posiuln is
not sustained by any general law OF congress,
IN "a NOT found IN the act creating the Bureau, I
and the Indictment refers 70 no special act IN
Tbe csss ofBaiey, cited by the counsel for the
state. IA Eleventh United States supreme Court
Reports. was an indictment 1or perjury based
non me third section Of the Act Of Congress Of
4aroh Isl. l424, entitled, An Act ia addition %
.he Act entitled An act for the prompt settle
nent of public accounts, and ior the punish
nent OF the crime Of PERJURY" The third sec
ion isas follows:
"Tha q any person swear or affirm falsely
ouchiug the expenditure OF public money, OF
n support Of amy claim against the United
States. he shall be guilty OF perjury"
That was q prosecution in a Federal Court for /
perjury against the United States nder he
vet OF Congress prescribing the odense. The
in that ease was whether q justice OF
state, had PoweTt to administer oaths generally,