Power v. Price

By the Court, Nelson, J. The common pleas undoubted-]y erred in laying down the position, that the plaintiff was not bound to prove that the testimony, which he gave on the trial before the justice, was material to the point in issue, in respect to which the charge of false swearing was made by the defendant; it is an essential ingredient in the crime of perjury, and must be averred and proved. 6 Johns. R. 82. 13 id. 81. 20 id. 349. 9 Cowen, 34. 1 Wendell, 477. 2 Chitty’s Cr. L. 456. If the charge is general, and proof be adduced that the plaintiff was a witness, and gave evidence on the trial of a cause, the law may, perhaps, presume that some part of his testimony was material: but if the charge is confined to a particular fact sworn to, such presumption ought not to be indulged : it should appear affirmatively that the fact was material to the issue. Although the law may reasonably enough intend that some part of the testimony given by a witness on a trial is material, the presumption would be too violent that the whole was so ; and without such presumption, it cannot be said that a specified part is material. The common pleas, however, were right in instructing the jury that the evidence in this case showed that the testimony charged to be false, was material to the point in issue before the justice. When there is no dispute as to the facts, the question whether the testimony was or was not material to the point in issue, is a question of law. The suit before the justice was brought by Power, against the trustees of a school district, for property taken under a warrant issued by them, and the ground of the action was, that the district meeting, .at the time they voted to raise the tax, was illegal. The ¡plaintiff there was examined, and testified in reference to that point on the trial. Power alleged that the annual meeting had adjourned over, and was dissolved previous to the vote of •adjournment to the 22d May, on which day the inhabitants of the district met and voted the tax. The plaintiff swore that he had no recollection of the fact alleged by Power, and Power ¡charged him with swearing false in so testifying. To show [503] that the meeting was held without authority, was pertinent to the issue; and the testimony of the plaintiff having an immediate bearing upon that point, was material. Judgment affirmed.