
    Commonwealth versus Joseph Knight.
    In an indictment for perjury, it is not necessary to allege that the witness was summoned to appear at the Court, or that, the false affirmation was in answer to a specific question.
    It is sufficient to allege, in such an indictment, that the perjury was committed in the trial of an issue duly joined, without an express allegation that the cause of action was within the jurisdiction of the Court. It is necessary that it should be alleged, or at least that it should appear in the indictment, that the facts, respecting which the testimony was given, were material on the trial»
    [*274] * The indictment in this case alleged, that, at a justice’s court, holden before G. E. Vaughan, Esq., one of the justices of the peace, &c., at, &c., on., &c., a certain issue duly joined in the court aforesaid, between Lucy Fogg, of, &c., as plaintiff, and Joseph Griffin, of, &c., defendant, in a certain plea of trespass, wherein the said Joseph Griffin was charged with having, by force and arms, broken and entered the close of the said Lucy Fogg, and with having cut down, taken, and carried away one large pine-tree there growing, of the value of twenty dollars, and with converting the same to his, the said Joseph Griffin's own use, came on to be tried in due form of law, and was then and there tried by the said 
      G. E. Vaughan, justice of the peace as aforesaid. And that upon the trial of the said issue so joined between the parties aforesaid, Joseph Knight, of, &c., appeared as a witness for and on behalf of the said Lucy Fogg, the plaintiff in the plea above mentioned, and was sworn and then and there took his corporal oath, administered by the said G. E. Vaughan, the justice aforesaid, to speak the truth, the whole truth, and nothing but the truth, touching and concerning the matters in question in the said issue (he, the said G. E. Vaughan, justice of the peace as aforesaid, then and there having sufficient and competent power and authority to administer an oath to the said Joseph Knight in that behalf). And that, upon the trial of the said issue so joined between the parties aforesaid, certain questions then and there became and were material, that is to say, whether he, the said Joseph Griffin, had broken and entered the said plaintiff’s close, and had cut down, taken, and carried away the said large pine-tree there growing, and had converted the same to his own use, as in the said process was alleged ; and that the said Joseph Knight, being so sworn as aforesaid, not having the fear of God before bis eyes, nor regarding the laws of this Commonwealth, but being moved and seduced by the instigation of the devil, and wilfully, corruptly, and maliciously intending, as much as in him lay, to prevent justice and pervert *the due course of law, and to cause [*275] the judgment of the said justice to be passed against the said Joseph Griffin on the trial of said issue, and to subject the said Joseph Griffin to the payment of damages, costs, and expenses, then and there, namely, on, &c., at, &c., falsely, wickedly, wilfully, maliciously, and corruptly, did say, depose, and swear, [after the said Joseph Griffin had produced two good and lawful witnesses to swear that he, the said Joseph Knight, and one Benjamin Fogg, had committed the trespass aforesaid, and had cut down, taken, and carried away the same pine-tree, the cutting down, taking, and carrying away of which was charged against the said Joseph Griffin in the suit aforesaid, and was then in issue,] “ that he, the said Joseph Knight, and the said Benjamin Fogg, never cut a tree together in the world, and that when he made the fence of the said Lucy Fogg he never cut any tree, and that it was old stuff he picked up, of which he made the said fence, and that the pine-tree aforesaid was cut and gone when he made the said fence.” Whereas, in truth and in fact, he, the said Joseph Knight, together with the said Benjamin Fogg, did cut down, take, and carry away the pine-tree aforesaid, for the taking, &c., of which the said Joseph Griffin was charged in the writ aforesaid, and did make use of the said tree in making the said fence of the said Lucy Fogg. And the said Joseph Griffin never cut down, took, or carried away any such tree. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Joseph 
      Knight, on, &c., at, &c., before the said G. E. Vaughan, justice as aforesaid, (and then and there having sufficient and competent power and authority to administer the said oath to the said Joseph Knight,) by his own act and consent, in manner and form aforesaid, did falsely, wickedly, wilfully, maliciously, and corruptly commit wilful and corrupt perjury, to the great injury of the said Joseph Griffin, in evil example to others in like case to offend, against the peace of the Commonwealth aforesaid, and contrary to the form of the statute in sue case made and provided.
    The defendant, being tried and convicted at an adjournment of the last October term, afterwards moved in arrest of judgment. [*276] *1. Because it was not alleged in the said indictment, that he, the said Joseph Knight, was lawfully required to take the oath in the indictment mentioned.
    2. Because it does not appear that the said justice of the peace had any jurisdiction of the cause on trial before him, it not being stated in the indictment that the close in which the supposed trespass was committed was within the county of Cumberland.
      
    
    
      3 Because the matters, stated to have been by him testified in the said trial, do not appear by the indictment to have been, and were not, material to the issue then on trial.
    
      Morton (Attorney-General), for the Commonwealth.
    
      Mellen and Emery, for the defendant.
    
      
      
        Rex vs. Callanan, 6 B. & Cr. 602.
    
   Jackson, J.

We do not think either of the two first objections to the indictment sufficient, on which to arrest the judgment.

Every person who appears as a witness, and is duly sworn before a competent court on the trial of an issue there depending, is “ lawfully required to depose the truth.” It is not necessary that it should appear, in an indictment for perjury, whether the witness was compelled to attend by a subpoena, or whether he attended voluntarily; nor whether the false affirmation was made in answer to a specific question put to him, or in the course of his own relation of the facts. In either case, he is equally required by law to depose the truth.

As to the jurisdiction of the justice before whom the oath was taken, it is averred in the indictment, that an issue was duly joined in his court, and came on to be tried before him in due form of law; and that he had competent authority to administer the oath in question. The only objection is, that it is not distinctly averred that the land mentioned in that suit before the justice was within his county. But such an averment is not necessary nor usual. When it is said, that an issue was joined “ in a certain plea of trespass on the case upon promises,” &c., or “in a certain plea of trespass and [*277] assault,” it is never added, that the promises were *made, or the assault committed, within the jurisdiction of the court, The third objection appears to us fatal. As it is not averred that the facts, respecting which the defendant testified, were material on the trial, we cannot consider them so; unless they clearly appear to be material from the other facts set forth in the indictment. It is stated that the defendant, in the suit referred to, produced two witnesses to swear that Knight cut down the tree in question ; but it is not stated that they testified to that fact, nor even that they were sworn on the trial. The whole averment, therefore, respecting those two witnesses, may be considered as struck out of the indictment. It has no bearing or effect whatever on the case. There is nothing else in the indictment, from which we can infer that the fact testified by the defendant, Knight, was material on the trial.

Judgment arrested. 
      
      [† Such an averment seema unnecessary under the Revised Statutes of Massachusetts ; for, by c. 128, § 2, it is provided, that, “ If any person, of whom an oath shall be required by law, shall wilfully swear falsely in regard to any matter or thing respecting which such oath is required, such person shall be deemed guilty of peijury — Ed.]
     
      
       3 Inst. 167.—Rex vs. Nichol, 1 B. & A. 21.
     