
    
      TUSCARAWAS COUNTY
    
      AUGUST TERM, 1818.
    
    Present — TAPPAN, President; LAFFER, DEARDORFF and NEIGHBOUR, Associates.
    
    OHIO vs. SMITH.
    No juror is bound to agree to a verdict contrary to his own conviction of truth.
    On an indictment for an assault and battery,;the person injured swore falsely, that he had not agreed with or been satisfied by the defendant, held that such false swearing was perjury, notwithstanding that such agreement and satisfaction did not discharge the criminal prosecution.
    The caption of an indictment, and the journal entries, may be amended, to be made conformable to the truth of the case.
    INDICTMENT FOR PERJURY — PLEA, NOT GUILTY.
    
      “State of Ohio, Tuscarawas Oounty, ss. At a court of common pleas, began and held at New Philadelphia, in the county of Tuscarawas, on Tuesday, the twenty-fourth day of March, in the year of our Lord, one thousaud eight hundred and eighteen, the grand jurors of the state of Ohio, for the body of the county of Tuscarawas aforesaid, in the name and by the authority of the state of Ohio, on their oaths and solemn affirmations, do present and find, that Michael Smith late of the township of-in said county of Tuscarawas, on Thursday the twenty-sixth day of March, in the year of our Lord one thousand eight hundred and eighteen, before the honorable the Judges of the court of common pleas, at New Philadelphia, in and for the county of Tuscarawas aforesaid, being in the fifth judicial circuit of the state of Ohio, then and there in open court came; and the court aforesaid, then and there had for consideration and adjudication before said court, a certain indictment before that time found by the grand jurors of the county of Tuscarawas aforesaid, for an assault and battery alledged therein to have been committed upon the body of one Michael Smith by one Henry Mauckiman, to which said indictment the said Henry Mauckiman had, in due form of law, pleaded guilty; and upon which said indictment, the said Michael Smith was a prosecuting witness, and was produced and appeared as such in open court, at the time and place aforesaid and on the Indictment aioresaid. And the grand jurors aforesaid, upon their oaths and solemn affirmations aforesaid, do further present and find, that at the term of March aforesaid, on the day and. year aforesaid, in the county aforesaid, on the said Indictment, then and there before said court, the said Michael Smith, in open court aforesaid, by the court, aforesaid, was duly sworn upon his corporal oath, “that the testimony'he would give to the said court, upon the indictment aforesaid, should be the truth, the whole truth, and nothing but the truth; ” the said court of common pleas then and there having, full, sufficient, and competent power to administer oaths, and the same oath as aforesaid, to the said Michael Smith in that behalf administered. And the grand jurors aforesaid, upon their oaths and solemn affirmations aforesaid, do further present and find, that upon the investigation by the court, of the degree of guilt of the said Henry Mauckiman upon the Indictment aforesaid, it then and there became, and was a material question, whether the said Michael Smith (upon a complaint made by him against the said Henry Mauckiman, before one George Peterson, Esquire, Justice of the Peace, in the township of Warren, in the said county of Tuscarawas, fir an alledged assaulting and beating of said Michael Smith, by the said Henry Mauckiman, and before which justice of the peace as aforesaid, the said Henry Mauckiman was then and there brought,) had, or had not agreed, to and with the said Henry Mauckiman, before the aforesaid, George Peterson, Esquire, justice of the peace; and whether or not he, the said Michael Smith, had compromised the difference between him and the said Henry Mauckiman, touching the complaint aforesaid; and whether the said Michael Smith, at the time aforesaid, and before the said George Peterson, Esquire, justice of the peace, did not say, and declare to tne said Henry Mauckiman, that he, the said Michael Smith, was satisfied with the said Henry Mauckiman, and would not further prosecute the said Henry Mauckiman. And thereupon, the said Michael Smith, being so produced and sworn as aforesaid, before the aforesaid court of common pleas, at the time and manner aforesaid, well knowing the premises, and devising and wickedly and maliciously intending by his testimony belore said court, to deceive said court, and to cause and procure a considerable fine to be imposed upon the said Henry Mauckiman,upon the said Indictment, and greatly to oppress and aggrieve and injure the said Henry Mauckiman, and not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, then and there, in the court aforesaid, at New Philadelphia aforesaid, in the county of Tuscarawas aforesaid, upon his corporal oath aforesaid, upon the trial or investigation on said Indictment, in open court as aforesaid, and on the day and year aforesaid, to wit, on the 26th day of March, in the year of our Lord one thousand eight hundred and eighteen, did falsely, wickedly, wilfully, corruptly, and positively, and by uis own act and consent, say, depose, swear, declare and give in evidence, amongst other things, to and before, the court aforesaid, in substance, and to the effect following, that is to say: “ That “he, the said Michael Smith, did not agree to the set- “ tlement before George Peterson with Henry Mauckiman, “ and that he expressed his dissatisfaction with it at the “ time, and told them that he would return him to the grand jury,” meaning thereby, that at the time when the said Henry Mauckiman was brought up before the said George Peterson, Esq. justice of the peace as aforesaid, upon a complaint made by him, the said Michael Michael Smith, against said Henry Mauckiman, of and concerning an assault and battery alledged to have been committed by said Henry Mauckiman, upon the body of him, the said Michael Smith, then and there aforesaid, did not agree to, and expressed his (meaning the said Michael Smith) dissatisfaction with, the settlement before Geo. Peterson meaning the settlement touching and concerning the complaints as aforesaid before him, Geo. Peterson, Esq. justice of the peace, and meaning thereby that the said Michael Smith had made no agreement whatever, either with the said Henry Mauckiman before the said George Peterson, Esq., justice of the peace aforesaid, or with the said Henry Mauckiman and the said George Peterson, Esquire. Whereas, in truth and in fact, at the time of the bringing up of said Henry Mauckiman, before the said George Peterson, on the complaint aforesaid, the said Michael Smith did agree to and with the said Henry Mauckiman, then and there as aforesaid, in the county of Tuscarawas aforesaid, before the said George Peterson Esq. justice of the peace as aforesaid, and was satisfied with the said Henry Mauckiman ; and in substance said and declared, at the time and place aforesaid, that he, the said Michael Smith, was sorry he had prosecuted the said Henry Mauckiman, and would not further prosecute the said Henry Mauckiman; he, the said Michael Smith (at the time and place, and in the manner when and in which the said Michael Smith so took his oath aforesaid, before the court aforesaid, on the Indictment aforesaid) well knew,that he, the said Michael Smith, had made an agreement as aforesaid, to and with the said Henry Mauckiman, before the said George Peterson, Esquire, justice of the peace; and he, the said Michael Smith, at the time and place aforesaid, on the complaint aforesaid, well knew that he, the said Michael Smith, had expressed his satisfaction and agreement to and with the said Henry Mauckiman before said George Peterson, Esquire, justice of the peace, meaning the complaint aforesaid, touching and concerning the said alledged assault and battery as aforesaid. And so the grand jurors aforesaid, upon their oaths and solemn affirmations aforesaid, do say, that the said Michael Smith, of the township of-in the said county of Tuscarawas, on the twenty-sixth day of March, in the year of our Lord one thousand eight hundred and eighteen, at New Philadelphia aforesaid, in the county of Tuscarawas aforesaid, upon his corporal oath aforesaid, before the said court of common pleas of said Tuscarawas county, in said state of Ohio, and in the fifth judicial circuit of said state, the said court of common pleas then and there having sufficient, full and competent power and authority to administer oaths to witnesses in said court, and to administer the oath aforesaid, to the said Michael Smith as aforesaid, voluntarily, by his- own act and consent, and of his own most wicked and corrupt mind and disposition, in manner and form aforesaid, did, falsely, wickedly, wilfully, maliciously, and corruptly, commit wilful and corrupt perjury, to the great displeasure of Almighty God, to the evil and pernicious example of all others in like cases offending, to the damage of the said Henry Mauckiman, against the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio. John C. Stockton, Pros. Att’y. of T. county.” — On which said bill of Indictment is endorsed, “state of Ohio, Tus. ct’y. ct. com. Pi’s. March T. 1818. A true bill, Thornton Whitacre foreman.”
    The jury returned a verdict of guilty — whereupon the following motion for a new trial; viz. 1st. The following direction given by the court to the jury, viz. “that the principle of law, that a reasonable doubt in the minds of the jury of a material fact necessary to support the issue, and prove the prisoner’s guilt, applied to capital cases only; and in this case the jury would decide upon the weight of testimony, as they would in any other controversy submitted to them as jurors,” is deemed by the prisoner to be incorrect, and unsupported by the law of the land. 2d. That the testimony produced, did not support the material allegations in the indictment, and therefore the verdict was contrary to evidence — was made and argued by
    Goodenow for the prisoner,
    and Johnson and Beebe for the State.
   President.

The first ground on which a new trial is asked, is a supposed misdirection of the court to the jury. If the jury have been misled by an erroneous direction of the court, no doubt a new trial should be granted. The counsel for the prisoner has mistaken the charge which was given, to the jury. It is laid down as a rule in favorem vitae, that it one of the jury doubts the prisoner’s guilt, the whole are bound to acquit. In observing upon this, it was stated to the jury that there was such a rule of law in the books, but it seemed to be applied to capital cases only. “That as the verdict must be the deliberate judgment of each one of the jury, upon the case submitted, each one should be satisfied, in his own mind, of its correctness; that no one juror was bound to give up his own conviction of truth and adopt the opinions of others; they were bound to deliberate, to examine, and if possible to agree on a verdict; but no one was bound to pronounce the prisoner guilty or not guilty, unless in his own mind he was satisfied that he was so — that as to the rule of law so much insisted on by counsel, if it was to be understood as requiring eleven jurors to agree to a verdict of acquittal, because one juror doubted, and could not agree to a verdict of condemnation, it ivas to absurd to be recognized as law in any case. That in deliberating upon the case submitted to them, the prisoner was to be presumed innocent of the offence charged against him, until the contrary was made evident to them by facts proven ; that criminal causes were not to be decided as civil causes were, by the mere preponderance of evidence: but that the evidence should be so clear and conclusive, as to leave no reasonable doubt of the truth of the charge, and so full as to be wholly irreconcileable with the prisoner’s innocence on any reasonable construction which could be given to it — or they should not return a verdict against him.” We are not able to perceive any error in this. As to the other point, we are satisfied that the evidence supported the indictment.— New trial refused. It was then moved in arrest of judgment: 1st. Because there is repugnancy in the indictment, in this: the caption shews the indictment to have been found on the 24th March, 1818, and the offence alledged to have been committed on a subsequent day, viz. 26th March, 1818. 2d. Because a material allegation in the indictment, of what the prisoner swore on oath to wit, that he told them he would return him to the grand jury, is not denied in the indictment, by any averment, to be true. 3d. Because there is no record upon which the indictment can be supported, either in its finding, its return into court, or of its existence upon the records of this court, at the commencement of this term. 4th. Because if the endorsement on the back of the indictment be sufficient to support the finding at March term 1818, it cannot authorise the court in ordering or directing an entry of its return into court, or of its continuance at said March term without the consent of the prisoner. 5th. That the indictment does not contain any sufficient matter to support the charge of perjury against the prisoner, and that, according to the law of the land, judgment cannot be rendered against him.

The counsel for the state, moved that an entry be ordered to be made now, as of the fourth day of the last term, (27th March 1818) upon the journals, of the return of the bill of indictment against the prisoner, and of its continuance unto this term. Warner, G-oodenow and Wright, for the prisoner. Beebe and Johnson, for the state.

President. — We will first consider the objections to the indictment, because, if they are well taken, it will be unnecessary to decide the other points made in the case. Mauckiman was indicted for an assault and battery upon Smith; he put in the plea of guilty to the indictment; and, upon the examination into the circumstances of the case by the court, he urged ^ ^ ^ ““““ W“J-±UU> an¿ satisfied him for the injury. It was of importance in mitigation of the fine, that he had settled with Smith, to ascertain this fact, because by the usual practice of the court, when the party injured is compensated for such injury, the submission of the party, and the fact of a compensation having been made, are taken into consideration as circumstances in mitigation of the fine to be assessed. This iudictment states, that Smith was sworn as a witness on such examination, and that he testified: 1st, that he did not agree to the settlement with Mauckaman : 2d, that he expressed his dissatisfaction with it at the time: and 3d, that he told them he would return him to the grand jury. The perjury is assigned in the 1st and 2d points of Smith’s evidence; and it is now urged, that, inasmuch as the person upon whom an assault and battery has been committed, has no power to settle and discharge the criminal prosecution, Smith might with truth deny that he had made any such settlement; that a compromise, illegal and void in itself, cannot be set up to contradict his testimony; that his testimony was strictly and technically true, although it might be apparently false; so that, under these circumstances, no perjury has been committed. The legal effect of such settlement, is no further in question, than as it may go to the materiality of the matters sworn to; whether a settlement between the parties would go to discharge the criminal prosecution altogether, or only in mitigation of the penalty inflicted on the aggressor, does not seem very important to inquire, when it is considered that it was a fact which would materially influence the decision of the court upon the matter then before them, and that such influence would not be modified by any consideration of the legal effect of such settlement, otherwise than as between the parties. Satisfaction to the party injured, would bar a suit for damages; it could not, therefore, be either void or illegal. The question, then, will be, whether, by this indictment, Smith is charged with swearing falsely as to an agreement with and satisfaction received of Mauckaman. It charged, that he was satisfied, and so expressed himself, and that he swore that he neither agreed or was satisfied with Mauckaman. Here is a sufficient charge of perjury; and as it is not necessary to assign perjury in every part of the matter sworn to, the indictment appears to be sufficient in substance. The residue of the motion in arrest of judgment, and the motion to amend, may be considered together. The March term of this court commenced upon the 24th day of the month, and continued to and was adjourned upon the 28th. On the 26th, the court proceeded to an hearing of the case of the state against Mauckaman, when Smith was sworn and examined as a witness. It being apparent to the court that Smith had sworn falsely, he was ordered into custody, and afterwards recognized to appear at this (the next) term, to answer to a charge of perjury. So far appears on the journals of the court. On file is an indictment, which appears to have beep found at the March term. At this term, Smith was surrendered by his bail, pleaded to the indictment, has been tried and convicted; there is no entry on the journals that the grand jury returned this bill of indictment into court, or of the continuance of the cause, but it is within the knowledge of the court, that the grand jury came into court on the 27th day of March, and returned this bill of indictment endorsed as it now appears.

After the prisoner has been convicted, by the verdict of an impartial jury, on very full and satisfactory evidence, upon an indictment sufficient in form and substance to warrant the court in pronouncing the judgment of the law against him, he claims to be discharged: 1st, because, by the caption of the indictment, and by a fiction of law, that the whole term is but one day, it may be inferred that the indictment was found beiore the offence was committed; 2d, because the clerk has omitted to make an entry on the journals, of the return of the indictment into court by the grand jury; and 3d, because a continuauce has not been entered. We know well that this indictment was not found upon the 24th day of March, but upon the 27th; that it was regularly returned into court by the grand jury; and that the cause was continued to this term; but, notwithstanding our knowledge of these facts, we are urged, with no little zeal, to act and decide, as though we were not merely ignorant concerning them, but knew the contrary of each to be true. There does not seem to be any reason for such course of proceeding, nor is any authority adduced; and, in all cases where a court are asked to make an irrational and absurd decision, an uniform course and concurrence of authorities should appear to contravene their own judgment of right and wrong, or I think they should follow that as the safer guide. In the case of the King vs. Darley, 4th East. 174, which was an indictment removed into the court of the King’s Bench, by certiorari, after a verdict of guilty in the court below, Gurney, for the prosecutor, moved upon an affidavit of the clerk of the peace of the county of Sussex, stating that the indictment, which appeared by the caption returned to have been found at ^he Midsummer general quarter sessions of the peace, was DOt found then, but at the Michaelmas session following, for a rule calling upon the defendant to shew oauge w}jy} upon reading the affidavit of W. E. and a parchment writing thereto annexed, and the minutes of the court before which the indictment was found, now produced and shewn to this court, the return to the writ of certiorari issued hy this court at the instance of the defendant should not be amended, by inserting in the return of the caption the time when, the general quarter sessions ol the peace at which the said indictment was found, was holden, and the names of the justices by whom the said sessions was holden, and the names of the jurors by whom the same was found, according to the truth of the fact. And why the entry roll in the treasury, and also the record of nisi prim, should not be amended as to the caption of the indictment, by making the same agree with the caption when so amended. And on a subsequent day of the term, Erskine, for the defendant, admitting that he could not oppose the amendment prayed, the rule was made absolute.” So far, then, as precedents are examined they fully authorise the amendments prayed for. Such amendments are made, that the truth may appear, not for the purpose of exhibiting a falsehood. The entry must be made on the journals now, as of the fourth day of the last term, the continuance entered, and the caption amended by stating the day it was found. Motion in arrest overruled.  