
    The State vs. Stephen Keenan.
    If upon the trial of an indictment for an assault and battery the prosecutor be examined, with a view to mitigate the sentence, upon matters immaterial to the issue, and swear falsely, it is perjury.
    BEFORE EARLE, J., AT CHESTER, SPRING TERM, 1832.
    The report of his Honor, the presiding Judge, is as follows:
    “ The perjury was charged to have been committed on the trial of an indictment, at last Spring Term, before me, against Samuel Kilpatrick, for an assault and battery on the person of this defendant. He was the prosecutor and I believe the only witness. As the assault and battery was clearly proved, and I think not denied, the then defendant wished to show the provocation he had received with the view of mitigating the sentence, and was permitted to ask the prosecutor, (now defendant) on a cross-examination, it not being objected to by the Solicitor, whether he had not given the defendant, Kilpatrick, some grievous provocation the evening before the day on which the assault and battery was committed. The indictment sets out the oath as follows: ‘ That the said Stephen Keenan did not give the said Samuel Kilpatrick any provocation a short time before the assault and battery charged in the said indictment, was committed, nor at any other time. And that the said Stephen Keenan did not stop at the bars, near the dwelling-house of the said Samuel, the evening before the said assault and battery was committed, and cry out: ‘hurra for the whore-shop.’ On this the perjury is assigned.
    “ A question was made by way of demurrer to the indictment, whether it could be sustained ? whether the oath charged to be false, or rather the fact sworn to, was so far material to the issue then pending before the jury as that perjury could be assigned upon it ? I was of opinion that the oath charged to be false, was in no way material to the issue, and therefore, that the indictment could not be sustained. The issue before the jury was guilty Or not guilty of the assault and battery, charged in the indictment to have been committed on the person of the prosecutor (now defendant). What I understand by the word material in this connection, is that the fact sworn to, in order to enable perjury to be assigned upon it if false, must tend directly or indirectly to produce conviction on the mind to which it is addressed, upon the particular issue before it: and in the present instance that the fact sworn to should have a tendency to lead the jury to a conclusion that the person charged was guilty or not guilty of the assault and battery, either by its direct bearing on the issue, or by supporting or weakening the witness’s testimony on some other point. And if the same verdict must have been rendered by the jury, whether the oath were true or false, it is obvious that it could not have been material. The very statement in the indictment seems to concede that the assault and battery was proved, and refers to some transaction anterior. Now if the defendant had committed the battery, and that was proved, the jury must have found him guilty, notwithstanding the previous provocation at another time. ■ The question of more, or less guilty is'one for the Judge after conviction or proof of the offence at least; and evidence brought out on the trial directed to the Judge upon the latter issue, cannot be material to that pending before the jury, if it cannot vary their finding. I question the propriety of allowing testimony of that character to be given. Suppose on the trial, the defendant Kilpatrick had offered testimony of the provocation on the previous evening, such as is alleged to have been given, I apprehend the Court would have rejected it, if offered either as a justification or as contradicting the prosecutor. I therefore sustained the demurrer to the indictment, and the defendant had judgment.”
    
      The State appealed on the grounds:
    1. That the perjury charged was circumstantially material to the issue pending.
    2. That the perjury charged was on a point material, as it was calculated to increase the punishment of defendant in case of conviction.
    
      Pearson, Solicitor, for appellant.
    
      Thompson, Williams, contra.
   The opinion of the Court was delivered by

Harper, J.

We are of opinion that the motion must be granted, and the demurrer overruled. It is said by Sergeant Hawkins, Ch., 69, § 8, “Also it seemeth that any false oath is punishable as perjury, which tends to mislead the Court in any of their proceedings relating to a matter judicially before them, though it no way affect the principal judgment which is to be given in the cause.” It is necessary that the falsehood alleged, should be material to an enquiry in the course of a judicial proceeding, though not relating strictly to the principal issue. Certainly the inquiry into the extent of the defendant’s guilt, as indicated by the circumstances of mitigation or aggravation, was properly an inquiry' in the course of a judicial proceeding. It is not necessary, in deciding the present question, to impugn the decision in the case of Smith Qameron ads. The State, 2 Bay. 62. Supposing that the testimony would, if objected to, have been rejected as .irrelevant,-yet by waiving the objection, the parties consent to make not only the question of guilty or not guilty, but also of the. extent and character of the guilt. If, after a verdict of guilty, the witness had been sworn ore tenus to testify to the circumstances, for the'information of the Court in passing sentence, there could be no doubt but that perjury would be assignable upon a false oatb on sucb an inquiry. I do not perceive bow it can make a difference that the same inquiry is instituted on the principal trial. It is to no purpose' to say that the witness is only sworn to testify the truth on 'the issue. In a civil action for trespass, and not guilty pleaded, the issue is in strictness' only guilty or not guilty; yet the jury inquire into the amount of damages, and unquestionably perjury is assignable on a false oath upon such an inquiry. Upon an indictment, the Court instead of the jury inquires into the extent of the penalty incurred. The witness in such case, cannot be unaware of the materiality of the inquiry, and it would be giving encouragement to «perjury, that its penalties could be evaded by such a pretext. I am authorized by my brethren, who have been ’more conversant with the practice than myself (and so far as my own observation has gone, it agrees with theirs) to say that it has been a long established and general.practice to .inquire into the circumstances of mitigation or. aggravation, on the principal trial. If there be no objection at least, the inquiry is properly so made. Certainly there are some advantages in this practice. The circumstances of aggravation, or extenuation, are often the most material part of the case, and these can be much better understood by the viva voce examination, and cross-examination of witnesses, than by affidavits.

The motion is granted.

JOHNSON and O’Neall, JJ., concurred.

Motion granted.  