A defendant in a criminal prosecution, who testifies in his own behalf and of his own accord, is guilty of perjury if he testi fies falsely. He is to be treated the same as any other witness ; State v. Hawkins, 115 N. C. 712, 20 S. E. 623; Murphy v. State, 33 Tex. Cr. R. 314, 26 S. W. 395; Hutcherson v. State, 33 Tex. Cr. R. 67, 24 S. W. 908 ; State v. Park, 57 Kan. 431, 46 Pac. 713.
Where one person arranges with another to commit perjury, both are in Pari delicto; Anderson v. Carkins, 135 U. S. 483, 10 Sup. Ct. 905, 34 L. Ed. 272. An attempt to induce a person to commit perjury on the con templated trial of an indictment not yet re turned, has been held not to be subornation of perjury; State v. Howard, 137 Mo. 289, 38 S. W. 908.
The immunity from prosecution on ac count of testimony by a bankrupt under ex amination does not protect him from indict went for perjury ; Edelstein v. II. 8., 149 Fed. 636, 79 C. C. A. 328, 9 L. R. A. (N. S.) 236, and note ; contra, U. S. v. Simon, 146 Fed. 89; In re Gaylord, 112 Fed. 668, 50 C. C. A. 415, the latter being, on this point, a dictum; in the first case a writ of certiorari was denial.; Edelstein v. U. S., 205 U. S. 543, 27 Sup. Ct. 791, 51 L. Ed. 922, and subse quently the decision thus "left undisturbed by the supreme court" (as Lacombe, J., ex presses it) was followed in another circuit court of appeals ; Wechsler v. U. S., 158 Fed. 579, 86 C. C. A. 37.
Punishment of perjury is provided for by statutes in all the states, and also by the United States when it is committed in any proceeding by or under federal laws; U. S. R. S. §§ 5392-5396. For a form of indict ment approved as correct in every substan tial part, see Bucklin v. U. S., 159 U. S. 682, 16 Sup. Ct. 182, 40 L. Ed. 304.
The power of punishing witnesses for tes tifying falsely in a judicial proceeding be longs peculiarly to the government in whose tribunals that proceeding is had; Re Loney, 134 U. S. 372, 10 Sup. Ct. 384, 33 L. Ed. 949. In general, perjury is committed as well by making a false affirmation as a false oath. See OATH.
It is unnecessary, in an indictment for perjury in making an affidavit wider R. S. § 5396, to set out the affidavit at length; U. S. v. Law, 50 Fed. 915.
The accused may show that his memory had become unreliable by reason of the near approach of paresis ; State v. Coyne, 214 Mo. 344, 114 S. W. 8, 21 L. R. A. (N. S.) 993; Leaptrot v. State, 51 Fla. 57, 40 South. 616; People v. Doody, 172 N. Y. 165, 64 N. E. 807.
As to the effect of perjury upon a judg ment obtained by means of it, the general rule is that false swearing or perjury at the trial is not alone sufficient to warrant the setting aside of the judgment; Ross v. Wood,
70 N. Y. 8 ; Greene v. Greene, 2 Gray (Mass.) 361, 61 Am. Dec. 454; Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, 13 L. R. A. 336, 25 Am. St. Rep. 159; Graves v. Graves, 132 Ia. 199, 109 N. W. 707, 10 Ann. Cas. 1104, 10 L.
A. (N. S.) 216, and note to this and two other cases from Kansas and North Carolina, where the cases are collected with the result of sustaining the general rule as stated, though with some conflict of decision. The rule is declared in U. S. v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93, but some doubt was raised by Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct, 62, 35 L. Ed. 870; but in U. S. v. Gleeson, 90 Fed. 778, 33 C. C. A. 272, the court declined to treat the latter case as limiting the rule of the former. In Kersey v. Rash, 3 Del. Ch. 321, it was said by Bates, Ch., that "if a verdict were obtained by means of perjury which the defendant at law, through surprise or the disability of sickness, was unable to meet, a court of law would grant a new trial, or if the perjury were discovered too late for application to a court of law, equity might well relieve." But in Steele T. Culver, 157 Mich. 344, 122 N. W. 95, 23 L. R. A. (N. S.) 564, it was held that where a judgment was confessedly obtained by- perjury, equity will not enjoin its enforcement ; so in Maryland Steel Co. v. Marney, 91 Md. 360, 46 Atl. 1077 ; contra, Boring v. Ott, 138 Wis. 260, 119 N. W. 865, 19 L. R. A. (N. S.) 1080. The note above cited in 10 L. R. A. (N. S.) 216, shows some conflict in the state courts and also in Eng land and Canada, and it may be referred to for cases too numerous for citation here.
No civil action lies for perjury so long as the judgment procured by it stands; Stevens v. Rowe, 59 N. II. 578, 47 Am. Rep. 231; Verplanck v. Van Buren, 76 N. Y. 247; Dun lap v. Glidden, 31 Me. 435, 52 Am. Dec. 625; Cunningham v. Brown, 18 Vt. 123, 46 Am. Dec. 140.
One who has lost a case by perjury of a witness against him cannot sue the witness; Godette v. Gaskill, 151 N. C. 52, 65 S. E. 612, 24 L. R. A. (N. S.) 265, 134 Am. St. Rep. 964 ; Horner v. Schinstock, 80 Kan. 136, 101 Pac. 996, 23 L. R. A. (N. S.) 134, 18 Ann. Cas. 21; Cunningham v. Brown, 18 Vt. 123, 46 Am. Dec. 140; Cro. Jac. 601; Cro. Eliz. 520.
See a note collecting the cases on nearly every point of the law of perjury in 85 Am. Dec. 488-501.