, 1874-02-14
INDICTMENT FOB PERJURY.

s motion to auash this Indictment was made
br defendants attorneys and submitted to the
Court several days ago, after full argument, in
which uuite range WAS taken, and several
reasons assigned in its support. Provisions Of
the City Charter and proceedings OF the CITY
Council we're read which, think. have no refor-
ence to tho question before the Court, and
which. az matters Of fact, cannot consider
The Court must look to the charges contained
in the indictment. and, go far as well-pleadcd
and sufficiently set forth, they are to ba taken na
true il considering this motion. But The month
ly report Of Dec /, 1878, to which is attached
the oath Of Gage, upon which, it is conceded,
this Indictment for perjury ia framed, End upon
which it rests. was presented upon the argument,
aud can be legitimAtc15 considered.
THE NOVEMBER REPORT.
The Indictment refers 10 this report and
affidavit, and assigns perjury upon it. 1t IS atso
Brought to the attention OF the Court by affidavit,
tnd by the admission OF tho Stntes Attorney,
nnd thus, in fsct, becomes part Of the record.
Although III some senze e1trinsic matter, it can
be considered by the Court in connection with
the Indictment :. as constituting the basis OF O
motion TO quash ~: Bishop, Criminal rractice,
Sc. 763; State y. Wall, Is No., 2os; State v.
Hawkins, 63 n c., 595, aud other authorities
cited l.y Bishop End BY counsel OH the argument
OF il:s motion-
IfIlookel to theindictment alone would haye
10 difficulty in deciding that it is good. But,
when considered With the account rendered and
affidavit lcd with It, it is doubtful ito say the
lsast Of it, whether it can be sustained upon d
trial or alter verdict, that feel that it is due
to tho accused, and to tie State, that it should
be quAalel Tor two OF the causes insisted upon
by the counsel ior the defense.
TINE OF TAKISo THE OATH.
It is not necessary that should say more in
retelenco 10 other objections than thai am
satisfied they are not well taken- The require
1renr of Sec. Is OF the Charter is, that the
Treasurer ;" shall, Al the end OF each and every
count to the Comptroller under oath" Tic
fnct is that the account for November, 1873, WAS
dated and filed with the Comptroller on tho lst
Gay Of December, 1873, while the. affidavit at
taehed LAS jurat dated the 9Th day Of Dccom-
ber, 1873. do not suppose that it is absolutely
necessary that the Treasurer should render his
account under oath tne very 1ast day Of the
mouth, for that would, in some cases, be legally
inp1acLlcablo, Us when that day occurs On Sum
dag. It would be substantial compliance with
the requirement Of the Charter for him to make
sud file his monthly account On oath on the 1st,
or about the LIST, Of the succeeding month,
and if he should swear falsely to any one
material item thercof be would be
guilty OF perjury. But. IN the case re are
cone;dering, it appears that he rendered the
account, aud that it WAS received and fled, on
tie lat day Of the month, without making oath to
it. and several days thereafter, when by the law
ls ras not required to do il, he made the oath.
There il no requirement that he should make an
oath to an account after he had in fact been per-
uit,ed by the officer to whom il was to be
rendered to make and file it without oath. It Ia
the false swearing to tie account rendered, AID
when rendered that constitutes perjury. It
may be tllat the account, although placed in tho
hands of the Comptroller, not in fact accept
cd By him as legal rendering OF the account,
aud TINT he required the accused, on the 9Th Of
December, to render the account under oath. II
80, then, II false, perjury mAy be assigned upon
it, for the section OF the Chartor referred to
autho.izes the Comptroller to require accounts
uuder oath at any time he may deem it proper.
s3ut this Indictment doEs not such TACT, ind,
1a such ayermcnt is material, the Indictment is
bad for want OF it.
KNOWLEDGE AID BELIEF.
Aguin, the Charter on17 requires the Treasurer
to declare in his oath that the statement is
true 60 fer as he knows or has reason to believe,
and the affidavit on which perjury is assigned in
this case contains TINT aye1mcnt, but the indict-
meut does not negative such belief. Where
tls defendant only states his belief, it is neces-
sary to aver that Le did not SO belieye-that he
know the contrary" Disllops Criminal Practice,
Sec, 923, 3 Nharton's Criminal Practice, Soc.
,2C1; State r. Lee, 5 Ala, COZ.
To illustrate the principle, Bishop says: " II
The testimony was tnat the defendant, who was
witness, believed that another person had com
naitted larceny, it is not sufficient to negative
merely the fact of the lnrceny, but the belief Of
the fact must be negatiyed also"
So here Gage swo1e that, $50 far as he had 1ea-
=or to belcve,'' the account WAS Just and true. !
It is true that he also swore, go far as he knew,
-he language being 8" go far Re I know or have |
,eason to believe" It may be plausibly con-
ended, therefore, that he sworo upon knos1-
sdgo ind that the facts stated were peculiarly
1:thin his own knowledge and upon their face |
appeared to be exclusively so.
This may all be 20; still it remains that the
}ath Was alternati7e-as If it had been, to my
knowledge or belief; and, in view Of the author
ties cited, Am satisfied the indictment should
laye negatived tia: belief
Tho motion to quash the indictment is sus-
aimed.
OTHER DIRECTIONS
Tho Court1 considerd the other questions
aised, gentlemen, and came to my conclusion
bout them; but I thought, aa I had concluded
aat for two reasons at least, it IVES necessary
, ouash the Indictment land it was, in my view,
bsolutely required), I did not deem it necessary
!, 20 into discussion of the other questions.
hsye said, however, IN the brief opinion that
read, simply that did not believe that the
her objections we're well taken. I am satisfied
i mr. own mind upon these points, as well as
Don the other two.
FAILURE TO PAY OVER.