PERJUR Y. The wilful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding. 2 Whart. C. L. § 1244.
The wilful giving, under oath, in a judi cial proceeding or course of justice, of false testimony material to the issue or point of inquiry. 2 Bish. N. Cr. Law § 1015.
It consists in swearing wilfully and cor ruptly to some matter which is untrue. State v. Smith, 63 Vt. 201, 22 Atl. 604.
Various false statements in one oath con stitute but a single offense ; Black v. State (Ga.) 79 S. E. 173.
The intention must be wilful. The oath must be taken and the falsehood asserted with deliberation and a consciousness of the nature of the statement made; for if it has arisen in consequence of inadvertency, sur prise, or mistake of the import of the ques tion, there was no corrupt motive; Hawk. Pl. Cr. b. 1, c. 69, s. 2; Cro. Eliz. 492; U. S.
v. Babcock, 4 McLean 113, Fed. Cas. No. 14,488; 11 Q. B. 1028; State v. Lea, 3 Ala. 602; People v. Brown, 74 Cal. 306, 16 Pac. 1. But one who swears wilfully and deliberate ly to a matter which he really believes, and which is false, and which he had no proba ble cause for believing, is guilty of perjury ; Corn. v. Cornish, 6 Binn. (Pa.) 249. And so is one who swears falsely, though he testi fies against his will ; Com. v. Turner, 98 Ky. 526, 33 S. W. 88. Where a bankrupt, having •submitted the facts fairly to his counsel, swore to a schedule wrongly made out on his advice, it was not perjury ; U. S. v. Conner, 3 McLean 573, Fed. Cas. No. 14,847 ; but ad vice of counsel sought as a cover, in bad faith, is no excuse; Tuttle v. People, 36 N. Y. 431; nor is intoxication ; People v. Willey,
2 Park. Cr. C. (N. Y.) 19; Schaller v. State, 14 Mo. 502; though it may be considered by the jury on the question of intent ; Lytle v. State, 31 Ohio St. 196.
The oath must be false. The party must believe that what he is swearing to is ficti tious ; and if, intending to deceive, he as serts that which may happen to be done without any knowledge of the fact, he is equally criminal, and the accidental truth of his evidence will not excuse him ; Co. 3d Inst. 166 ; Hawk. Pl. Cr. b. 1, c. 69, s. 6; 1 Bish. N. Cr. L. § 437. See People v. Bur den, 9 Barb. (N. Y.) 467; 1 C. & K. 519; Gib son v. State (Tex.) 15 S. W. 118. As, if a man swears that C D revoked his will in his presence, if he really had revoked it, but it was unknown to the witness that he had done so, it is perjury ; Hetl. 97. Knowledge by a witness that his testimony is false, is tested, like intention generally, by sound mind and discretion, and by all the circum stances; soundness of mind, where nothing to the contrary appears, being assumed; McCord v. State, 83 Ga. 521, 10 S. E. 437.
The party must be lawfully sworn. The person by whom the oath is administered must have competent authority to receive it; an oath, therefore, taken before a private person, or before an officer or court having no jurisdiction, will not amount to perjury, "For where the court hath no authority to hold plea of the cause, but it is coram non judice, there perjury cannot be committed ;" Jackson v. Humphrey, 1 Johns. (N. Y.) 498; 3 C. & P. 419; Com. v. White, 8 Pick. (Mass.) 453 ; 12 Q. B. 1026; Co. 3d Inst. 166; State v. Wymherly, 40 La. Ann. 460, 4 South. 161; U. S. v. Hall, 131 U. S. 50, 9 Sup. Ct. 663, 33 L. Ed. 97. See Renew v. State, 79 Ga. 162, 4 S. E. 19; Anderson v. State, 24 Tex. App. 715, 7 S. W. 40 ; Butler v. State, 36 Tex. Cr. R. 483, 38 S. W. 46; State v. Gates, 107 N. C. 832, 12 S. E. 319 ; State v. Wilson, 87 Tenn. 693, 11 S. W. 792.