An indictment for perjury in a deposition made before a special
examiner of the Pension Bureau which charges the oath to have been
willfully and corruptly taken before a named special examiner of
the Pension Bureau of the United States, then and there a competent
officer, and having lawful authority to administer said oath, is
sufficient to inform the accused of the official character and
authority of the officer before whom the oath was taken.
In such an indictment, it is not necessary to set forth all the
details or facts involved in the issue as to the materiality of the
statement, and as to the authority of the Commissioner of Pensions
to institute the inquiry in which the deposition of the accused was
taken.
The provision in Rev.Stat. § 1025 that
"no indictment found and presented by a grand jury in any
district or circuit or other court of the United States shall be
deemed insufficient, nor shall the trial, judgment, or other
proceeding thereon be affected, by reason of any defect or
imperfection in matter of form only which shall not tend to the
prejudice of the defendant,"
is not to be interpreted as dispensing with the requirement in
§ 5396 that an indictment for perjury must set forth the
substance of the offense charged.
Page 160 U. S. 320
An indictment for perjury that does not set forth the substance
of the offense will not authorize judgment upon verdict of guilty.
Dunbar v. United States, 156 U. S. 185,
affirmed.
The plaintiff in error was indicted in the District Court of the
United States for the District of Kentucky for the crime of
perjury, as defined in section 5392 of the Revised Statutes.
The defendant pleaded not guilty. The first and second counts
related to certain statements by the accused, alleged to have been
willfully, falsely, and feloniously made, in a deposition, given,
under oath, before G. C. Loomis, a special examiner of the Pension
Bureau of the United States, such statements being material to an
inquiry pending before the Commissioner of Pensions in reference to
a claim of the accused for a pension from the United States. The
third count set out another statement of the accused in the same
deposition, and charged that he did not believe it to be true.
The defendant was found guilty upon the fourth count of the
indictment, which was as follows:
"And the grand jurors aforesaid, upon their oaths aforesaid, do
further present that at Bowling Green, in the district aforesaid,
on the seventh day of October, in the year of our Lord eighteen
hundred and ninety-two, the matter of the hereinafter mentioned
deposition became and was material to an inquiry then pending
before, and within the jurisdiction of, the Commissioner of
Pensions of the United States at Washington, in the District of
Columbia, whereupon said William H. Markham did then at said
Bowling Green, willfully and corruptly take a solemn oath before G.
C. Loomis, then and there a special examiner of the Pension Bureau
of the United States, and then and there a competent officer and
having lawful authority to administer said oath; that a certain
written deposition then and there by said Markham subscribed was
then and there true, and in giving said deposition said Markham was
asked by said Loomis a question in substance and effect as follows,
to-wit: 'Have you received any injury to forefinger of right hand
since the war, or since your discharge from the army?', by which
said question said
Page 160 U. S. 321
Loomis referred, and said Markham well understood said Loomis to
refer, to the right hand of said Markham. And in answer to said
question, said Markham then and there made and subscribed an answer
and statement in substance and effect as follows, to-wit: 'No, sir;
I never have' -- which said statement that said Markham never had
received any injury to the forefinger of his right hand since his
(said Markham's) discharge from the army was then and there
material to said inquiry, and was then and there not true; whereas,
in truth and in fact the said Markham had then and theretofore
received an injury to the forefinger of his (said Markham's) right
hand, as he, the said Markham, then and there very well knew. And
so the jurors aforesaid, upon their oaths aforesaid, say that said
Markham did commit willful and corrupt perjury, in the manner and
form as in this count aforesaid, against,"
etc. There was no demurrer to the indictment nor any motion to
quash either of the counts.
The defendant moved for an arrest of judgment upon the following
grounds: 1st., that the count upon which he was found guilty
charged no offense under the statute; 2d., that its averments did
not inform the court that any offense had been committed, nor show
that Loomis, the examiner, was authorized to administer the oath
alleged; 3d., that the averments did not set forth the proceeding
or cause in which the defendant was charged to have given his
deposition, or made oath to the statement alleged to be false, in
such manner as to show that the deposition and the alleged false
statement were material to any inquiry or matter before the
Commissioner of Pensions, nor the what said inquiry related, nor
show that Loomis, special examiner, had any lawful authority to
swear or require the defendant to swear to the deposition or
statement averred to be false, nor for what purpose, nor upon what
cause, or investigation of what claim, or of any claim, pending
before any department of the government, or in any court; 4th.,
that it did not aver facts sufficient to show the materiality of
the oath or statement alleged to have been made; 5th., that the
words charged to have been sworn
Page 160 U. S. 322
to by defendant were not averred to have been sworn to willfully
and corruptly; 6th., that it failed to aver what charge was under
investigation.
The motion in arrest of judgment was overruled, and the accused
was sentenced to make his fine to the United States by the payment
of $5, and to be imprisoned at hard labor in the Indiana State
Prison, south at Jeffersonville, Indiana, for the full period of
two years from a day named. From that judgment the present writ of
error was prosecuted.
MR. JUSTICE HARLAN, after stating the facts as above, delivered
the opinion of the Court.
The contention that the indictment was insufficient in law
cannot be sustained.
By section 4744 of the Revised Statutes, as amended by the Act
of July 25, 1882, c. 349, it is provided:
"The Commissioner of Pensions is authorized to detail from time
to time clerks or persons employed in his office to make special
examinations into the merits of such pension or bounty land claims,
whether pending or adjudicated, as he may deem proper, and to aid
in the prosecution of any party appearing on such examinations to
be guilty of fraud, either in the presentation or in procuring the
allowance or such claims, and any person so detailed shall have
power to administer oaths and take affidavits and depositions in
the course of such examinations, and to orally examine witnesses,
and may employ a stenographer, when deemed necessary by the
Commissioner of Pensions, in important cases, such stenographer to
be paid by such clerk or person, and the amount so paid to be
allowed in his accounts."
Rev.Stat. § 4744, 22 Stat. 174, 175. And by section 3 of
the Act of March 3, 1891, c. 548, it was provided:
"That the same power to administer oaths and take affidavits,
which by virtue of section forty-seven seven hundred
Page 160 U. S. 323
and forty-four of the Revised Statutes is conferred upon clerks
detailed by the Commissioner of Pensions from his office to
investigate suspected attempts at fraud on the government through
and by virtue of the pension laws, and to aid in prosecuting any
person so offending, shall be, and is hereby, extended to all
special examiners or additional special examiners employed under
authority of Congress to aid in the same purpose."
26 Stat. 1083.
In view of these enactments, the averment that the oath, charged
to have been willfully and corruptly taken was taken
"before G. C. Loomis, then and there a special examiner of the
Pension Bureau of the United States, and then and there a competent
officer and having lawful authority to administer said oath,"
was sufficient, in connection with the statute, to inform the
accused of the official character and authority of the officer
before whom the oath was taken.
It is provided by section 5392 of the Revised Statutes that
"every person who, having taken an oath before a competent
tribunal, officer, or person, in any case in which a law of the
United States authorizes an oath to be administered, that he will
testify, declare, depose, or certify truly, or that any written
testimony, declaration, deposition, or other certificate by him
subscribed is true, willfully and contrary to such oath states or
subscribes any material matter which he does not believe to be
true, is guilty of perjury, and shall be punished by a fine of not
more than two thousand dollars, and by imprisonment at hard labor
not more than five years, and shall, moreover, thereafter be
incapable of giving testimony in any court of the United States
until such time as the judgment against him is reversed."
And by section 5396, it is declared that
"in every presentment or indictment prosecuted against any
person for perjury, it shall be sufficient to set forth the
substance of the offense charged upon the defendant, and by what
court, and before whom the oath was taken, averring such court or
person to have competent authority to administer the same, together
with the proper averment to falsify the matter wherein the perjury
is assigned, without setting forth the bill, answer,
Page 160 U. S. 324
information, indictment, declaration, or any part of any record
or proceeding, either in law or equity, or any affidavit,
deposition, or certificate, other than as hereinbefore stated, and
without setting forth the commission or authority of the court or
person before whom the perjury was committed."
The requirement that it shall be sufficient in an indictment for
perjury to set forth the substance of the offense is not new in the
statutes of the United States. It is so provided in the Crimes Act
of April 30, 1790, 1 Stat. 112, 116, c. 9, § 18, and the
latter act, in the particular mentioned, was the same as that of 23
Geo. II. c. 11. Referring to the English statute and to the objects
for which it was enacted, Mr. Chitty says that the substance of the
charge is intended in opposition to its details. 2 Cr.Law, 307;
King v. Dowlin, 5 T.R. 311, 317.
Did the fourth count set forth the substance of the offense
charged? It gave the name of the officer before whom the alleged
false oath was taken, averred that he was competent to administer
an oath, set forth the very words of the statement alleged to have
been willfully and corruptly made by the accused, and charged that
such false statement was part of a deposition given and subscribed
by the accused before that officer, and was material to an inquiry
then pending before, and within the jurisdiction of, the
Commissioner of Pensions of the United States.
The question propounded to the accused, and to which he was
alleged willfully and corruptly to have made a false answer,
manifestly pointed to an inquiry pending before the Commissioner of
Pensions, in relation to himself as a former soldier in the army;
that inquiry presumably related to a claim by him for a pension on
account of personal injuries received by him in the service, and
the general charge that the statement was made with reference to a
pending inquiry before, and within the jurisdiction of, the
Commissioner of Pensions, in connection with the distinct, though
general, averment that such statement was material to that inquiry,
was quite sufficient under the statute. Under the plea of not
guilty, the government was required to show the materiality of the
alleged false statement, and, in so doing, must necessarily
Page 160 U. S. 325
have disclosed the precise nature of the inquiry to which it
related. And it may well be assumed, after verdict, that all such
facts appeared in evidence, and that the accused was not ignorant
of the nature of the inquiry to which his deposition related, and
to which the indictment referred.
It was not necessary that the indictment should set forth all
the details or facts involved in the issue as to the materiality of
such statement, and the authority of the Commissioner of Pensions
to institute the inquiry in which the deposition of the accused was
taken. In 2 Chitty's Criminal Law 307, the author says:
"It is undoubtedly necessary that it should appear on the face
of the indictment that the false allegations were material to the
matter in issue. But it is not requisite to set forth all the
circumstances which render them material. The simple averment that
they were so will suffice."
In
King v. Dowlin, above cited, Lord Kenyon said that
it had always been adjudged to be sufficient, in an indictment for
perjury, to allege generally that the particular question became a
material question. So, in
Commonwealth v. Pollard, 12 Met.
225, 229, which was a prosecution for perjury, it was said that it
must be alleged in the indictment that the matter sworn to was
material, or the facts set forth as falsely and corruptly sworn to
should be sufficient in themselves to show such materiality. In
State v. Hayward, 1 Nott & McCord 546, 553, which was
also a prosecution for perjury, the court, after observing that it
should appear on the face of the indictment that the false
allegations were
material to the matter in issue, adjudged
that it was not necessary "to set forth all the circumstances which
render them material. The simple averment that they became and were
so will be sufficient." Many other authorities are to the effect
that the substance of the offense may be set forth, without
encumbering the indictment with a recital of its details and
circumstances.
As the count in question set forth the words of the alleged
false statement, and thereby made it impossible for the accused to
be again prosecuted on account of that particular statement; as it
charged that such statement was material to an inquiry pending
before, and within the jurisdiction of, the Commissioner
Page 160 U. S. 326
of Pensions, and as the fair import of that count was that the
inquiry before the Commissioner had reference to a claim made by
the accused under the pension laws, on account of personal injuries
received while he was a soldier, and made it necessary to ascertain
whether the accused had, since the war, or after his discharge from
the army, received an injury to the forefinger of his right hand,
we think that the fourth count, although unskillfully drawn,
sufficiently informed the accused of the matter for which he was
indicted, and therefore met the requirement that it should set
forth the substance of the charge against him.
It is proper to add that § 1025 of the Revised Statutes,
providing that
"no indictment found and presented by a grand jury in any
district or circuit or other court of the United States shall be
deemed insufficient, nor shall the trial, judgment, or other
proceedings thereon be affected by reason of any defect or
imperfection in matter of form only, which shall not tend to the
prejudice of the defendant,"
is not to be interpreted as dispensing with the requirement in
§ 5396 that an indictment for perjury must set forth the
substance of the offense charged. An indictment for perjury that
does not set forth the substance of the offense will not authorize
judgment upon a verdict of guilty.
Dunbar v. United
States, 156 U. S. 185,
156 U. S.
192.
We perceive no error of law in the record, and the judgment
is
Affirmed.
