The Redwood gazette. [volume] (Redwood Falls, Minn.) 1873-1940, 1894-03-15

but on the ground that the alleged
new y discovered evidence is irrele
want, incompetent and immaterial, land
that the issue of the signing of any
release was not in any manner raised
on the trial of said action"
An exception was noted. Judge
Webber. pulled from his inside coat
pocket his decision. ae adjusted his
glasses, turned to the last of the five
pages of typewriter manuscript, af
fixed his signature, announced that
the motion for new trial had been
denied, and filed the decision. Mr.
Madigan said not a word, showed nc
signs of disappointment. An appeal
was taken to the Supreme Court, the
bond was fixed at 5000 with only
two sureties allowed, the defendant
being allowed until Saturday after
noon to get the bond. The decision
of Judge Webber, except the refer
ences, is here given in full:
The above named defendant having
been found guilty of the crime of per-
jury at the general adjourned term of
said court, on the 9th day of Janu-
ary, 1894, the defendant now moves,
upon the settled case and certain aft
davits, that the verdict of the jury be
vacated and set aside and new trial
granted upon the following terms:
First-For errors of law occurring at
the trial and excepted to by the de-
fendant.
Second-Because the verdict is not
justified by the evidence and contrary
to law.
Third-Because of the misconduct
of the jury during thu trial of said
cause which was contrary to law and
prejudicial to the rights of the de-
fendant.
Fourth h-F'or irregularity on the part
of the court and jury during said trial,
whereby the defendant was prevented
from having fair and impartial trial.
Fifth-Accident and surprise which
ordinary prudence could not have
guarded against, among others in
this: The preconceived opinion of
Juror Alonzo H. Pickle, and not dis
closed, and the ignorance of Juror
Joseph Gag, of the English language.
It is claimed on the part of the de-
fendant, that the indictment does not
state facts sufficient to constitute a
public offense, for the reason that it
appears from the face of the indict-
ment, that the defendant was not
competent to make the affidavit where
in the perjury is alleged to have been
committed: u for the reason that he
was not the attorney of the plaintiff
(2) that it is not alleged that the mat
ters deposed to were material; 81 that
it does not appear that the affidavit
was made in any action pending in
any court.
In my opinion neither of these
points is we'll taken and not sustained
by the authorities cited. 1t is held in
United States VS.. Grottkau. 80 Fed.
Reporter 672, that an applicant for
citizenship is prohibited from being a
witness as to his residence and, there
fore, his oath cannot be the basis for
an indictment for perjury. But, not
withstanding the evidence may be in
competent, if a witness voluntarily
testifes falsely to material matter, he
may be punished for perjury. Madi-
gan was competent witness to prove
that he was attorney for the plaintiff,
and, having proved this fact by his
own evidence, he was a competent
witness to prove the other fact set
forth in the affidavit, and these facts
being material, and the affidavit being
false, the indictment is not vititated
by reason of alleging such falsity.
The affidavit set forth in the indict-
ment, and the statute prescribes what
the affidavit shall contain, and its ma
teriality is therefore, apparent: and
when such materiality appears it need
not be averred.
The objection that it does not ap-
pear from the indictment that the af-
fdavit was made in an action pending
in court, is disposed of by decision
of the Supreme Court of our own
State. Crombie VS.. Little, AZ MINI.
581, 587.
The defendant claims that the jury
was misled by the charge of the court.
I am unable to find anything that
would tend to mislead the jury, but,
upon this point, it is sufficient to say
that no exception was taken to that
portion of the charge claimed to have
been misleading. The only excep-
tions taken we're as follows: 81 desire
to except to the two main propositions
which are covered oy the original mo-
ton 1 made in the case" The de-
fendant excerpts to the statement of