State v. Joaquin

Peters, J. This indictment alleges that the respondent endeavored to procure another to commit perjury. The substance of the matter alleged is, that the respondent intended to commence a suit, or institute a proceeding, in which the perjury was to be committed. We think the case is not reached by the statute on which the indictment is founded. The true rendering of the statute is, that a person shall be liable who endeavors to procure a person to swear falsely “ in a proceeding before any court, tribunal or officer created by law, or in relation to which an oath or affirmation is by law authorized.” The objection is that the suit or proceeding was not pending. It might never be commenced. Therefore it was an instigation to commit an offense upon a condition or [220] contingency that might never happen. This was rather an ideal than a.real offense, morally reprehensible no doubt, but not such as the law sees fit to notice. The county attorney ingeniously argues that, if the proceeding is pending, it may never come on for trial, and that there is no more condition in the way of a suit being brought than there is of its being tried after it is pending in court. But there is a presumption that a case in court is to be tried or disposed of, a presumption of continuance, order or regularity in the course of judicial proceedings, while there is not a presumption that a person will consummate a crime that he may have had in contemplation. No doubt a person could be guilty under the statute of endeavoring to incite another to commit perjury where no proceeding is pending, but where the act done would itself constitute a proceeding. A man might be induced to go before a grand jury and falsely swear to a complaint. A pregnant woman might be instigated by another to go before a magistrate and falsely swear to proceedings against a man as the father of her bastard child expected to be born. In such cases the acts of the foresworn parties would have the effect, per se, to institute proceedings. Mr. Chitty in his Pleadings has furnished precedents for such indictments. But here the instigation was not to commence a proceeding by false swearing, but to swear falsely in some proceeding, provided at some time before some court in some form one should be commenced. Demurrer sustained. Appleton, C. J., Daneorth, Virgin and Libbey, JJ., concurred.