People v. Tredway

By the Court, Gridley, J. This motion involves only the sufficiency of the indictment, and has no concern with any errors committed on the trial; the questions arising upon the bill of exceptions having been disposed of by the late supreme court upon a motion for a new trial, made before that tribunal. The indictment charges the prisoner with the crime of perjury, committed upon an examination under oath as to his sufficiency as a surety for one Willard Loomis, in a bond executed under the 4th subdivision of the 10th section of the act “ to abolish imprisonment for debt,” after a conviction of said Loomis and an order for his commitment under that act. The objection now made to the indictment is that it does not set forth facts 473 sufficient to show that the officer who entertained the proceedings and made the order for commitment, had jurisdiction to .issue the warrant. I do not understand it to be contended by the counsel for the people that the indictment would be good if it were necessary to set out the facts conferring jurisdiction upon the officer, as it was before the 23d Geo. 2, ch. 11, in England, and the second section of the act to prevent peijury (1 R. L. 171) in this state. By that act however it Was made “ sufficient to set forth the substance of the offence 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, &c. and without setting forth the commission or authority of the person or court before whom the perjury was committed.” Now this enactment was repealed when the revised statutes went into operation, and there is no corresponding provision in those statutes, unless it be found in the 52d section of the act concerning “ indictments and proceedings thereon.” That section enacts that no “ indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings therein, be affected 1. By the omission of the defendant’s title, addition, &c. 2. By the emission of the words ‘ force and arms,’ &c. 3. By omitting the words ‘ contrary to a statute,’ &c. or 4. By feason of any other defect or imperfection in matter of form, which shall not tend to the prejudice of the defendant.” The question presented for our decision is whether this statute of jeofails was intended to relieve the criminal pleader from setting forth in the indictment the facts requisite to confer jurisdiction on the officer who administers an oath — an averment which would seem to be essential, as a matter of substance, to the very existence of the crime of peijury — and without which (in analogous cases) in civil suits a pleading would be held insufficient. I confess that if this were a new question, I should hold with the counsel for the prisoner, that such a construction of the act went far beyond the intent of its framers, and was not warranted by any sound rule of interpretation. But we are Constrained to say that the question is no longer an open one. 474 It has been directly decided in the case of The People v. Phelps, (5 Wend. 10,) and the principle again reiterated and declared to have been settled in the former case, in The People v. Warner, (Id. 271.) Now if this had been an obiter dictum merely, or if we could see that some important principle had been overlooked by the court, and not considered, we might have disregarded this case as an authority. Such, however, is not the fact. The construction and the effect of the provision of the revised statutes in question was the very point on which the case of The People v. Phelps turned. The court, too, were aware of all the decisions at common law, and of all the statutory enactments necessary to be considered in coming to a light judgment upon the question before them. Under such circumstances we must regard this decision as binding upon us, or we must abandon the principle of “ stare decisis,” and make the stability and certainty of the law depend on the individual opinions of successive judges. It is better that an erroneous rule should be endured, till it can be corrected by a higher tribunal, or changed by the legislature, than that the law should be subject to constant fluctuation and change. It is probable that the indictment in this case, and hundreds in other cases, have been drawn upon the authority of the decision in question. Having come to the conclusion that the indictment must be held good, upon authority, it becomes unnecessary to examine another question suggested by the counsel to the court, upon the argument. We must therefore deny the motion for a new trial.