Butler citizen. [volume] (Butler, Pa.) 1877-1922, 1883-08-01


sworn by the Court, But that is
non seguitur. The presence of tn
Court gave no authority. But tn
Court in the exercise of its own author
ity might make him or anybody else it
instrument or organ for the perform
ance of its own act. 1t is agreed a.
round and laid down by the Judge a
the true construction of the statut o.
the subject thai deputy of the Pro
thonotary has no general power, tha
is to say, no power of his own, Utrtut
Oficii, to administer oaths. But tn
prosecution seems to have thought tha
the power became vested in him when
ever he came into the presence of tn
Court and was divested the momen
he went out. If this be true of Mr.
Brown, it is true of every other citizer
who crowds into room where cour
is in session. This would be an alb
surdity. The truth is patent that i
this defendant was not sworn by the
Court he was not legally sworn at all
The indictment says he was sworn by
Brown, who was not the Court mol
could he make his act the act of the
Court merely by doing it in the pres
ence of the Court, which is all that the
indictment alleges. This verdict, there
/ fore, ought to be set aside for all th.
reasons that were given by the Judge
for a new trial on the first indictment
There is another variance between
the indictment and the evidence which
does not seem to have been much motto
ed on the trial. The indictment states
by way of inducement all the transac
tions between the parties to the judg
ment which was in any wise connect
ed with it. Perhaps this was not
necessary. 1t was enough to aver the
existence of the judgment, the petition
to open it, and the materiality of that
part of the defendants oath on which
the perjury is assigned But having
undertaken to set forth the previous
and concurrent transactions, the recital
must be accurate, and the prosecution
fails if it appears on the trial that it is
false. The documents might be given
literally (that is textually copied into
the indictment) or the substance of them
stated. But if in the former case the
copy is false, the paper cannot be read;
in the latter case the substantial effect
of it must be truly stated or else it can.
not be given in evidence. Here was
an agreement between three joint debt
ors in which it is avered that one of
them (the defendant) covenanted with
the other two that he would release
them from the obligation to pay any
part of the debt The agreement ac-
tually made and shown to the Court
and read to the jury has nothing in it
of the kind, nor could he have perform.
ed such contract if he had made it.
The proof did not sustain the aver.
ment.
l am quite well aware that on this
point the defendant has not q strong
technical hold. The proper advantage
was not taken of it On the trial. But
| haye faith enough to believe that a
good grip on the conscience of the
Court will be as available as the incest
touch of mere artificial law. The
Judge will not see mans liberty taker
from him by illegal evidence admitted
through an oversight. The power tc
correct any error by which the current
OF legal justice may be turned awry re
mains in the hands of the Court unit
the moment of final judgment, no mat
ter how short time before that it may
have been discovered.
1t was stoutly and ably contended
by the defendants counsel that tht
payment of the debt by Wolford ant
Hindman annihilated the obligation o
all the joint debtors and extinguishet
the judgment, so that no oath which
the defendant or anybody else could
take concerning the mere equities be
tween those who paid and the one wht
did not pay, was or could be materia
ON petition to open the judgment
The Judges reasons for the contrary
opinion are on record and they are un
answerably sound and true. He make!
it clear enough that the validity of tht
Judgment as against Smith was no
affected by the fact that it was paid by
and assigned to Wolford and Hindman
But suppose the law to be otherwise, -
Smith certainly had right to waiv,
his advantage and stand upon the
equity of his case. That was what h'
did. His petition was in effect bill
for an injunction to restrain execution
The other party denied the allegation
and thus raised between them an issue
fit to be heard and determined only by
chancellor. 1t would be monstrou'
to say that the defendant might sweal
falsely to fact material in that issue
and then clear himself of perjury by
showing that the judgment he sough
to open was void in law by reason of a
fact not at all involved in the question
which the chancellor had before him.
But in order to convict of perjury i
is necessary for the Commonwealth t.
show beyond a reasonable doubt tha
the fact alleged to be falsely sworn wa
material to the issue or matter to b'
decided by the court. Incidental re
marks or collateral statements are il
fact not sworn to at all, for the oatl
does not include an obligation to b,
true about matters that are immateria
or not connected with the point of in
quiry.
What was the question before tn
Court 3? We cannot make any mistak
about that 1t was whether or no
John Smith had an equitable right t.
stay execut on on the judgment or t
have it opened. That was the sol
point of inquiry. Every fact was ma
terial which tended remotely or prox
mately, directly or indirectly, to shov
that his claim upon the Intervention {
the Court for that purpose was q goo
, one. But it is not sound law-it i
not even respectable nonsense-to sa
that other transactions were materii
which lay totally outside of that unde