
    The State v. Woolverton.
    An indictment for perjury cannot be maintained where the supposed perjury depends upon the construction of a deed.
    
      ERROR to the Vermillion Circuit Court.
   Perkins, J.

Indictment for perjury. Indictment quashed in the Circuit Court. •

The indictment charges that a suit was pending before two justices of the peace wherein Stephen S. Collett was plaintiff and Abel Woolverton was defendant, in which suit said Woolverton, who is the defendant to the indictment, filed the following plea: “And for a further and second plea the said defendant says that the title of lands is in controversy in this cause; that a deed of defeasance was made to this defendant by the said plaintiff, Collett; and that by the outstanding title in this cause, he will be enabled to show that said Collett has no right to the possession of the lands set forth in said Collett's complaint; and that the title to lands is in issue, in this cause; and this he is ready to verify. Abel Woolverton." This plea is charged to have been sworn to before competent authority. The assignment of perjury upon i,t is as follows: “Whereas, in truth and in fact at the time the said A bel Woolverton took his oath and made his affidavit as aforesaid, the title of lands was not in issue in the said cause, nor was the title of lands in controversy in the said cause at the time of making the said affidavit and taking the said oath by the said Abel Woolverton,” &c.

It will be observed that the existence of the deed of defeasance is not denied, and it is very clear to us that the assertions in the plea upon which the perjury is assigned, “that the title of lands is in controversy,” and “ that the title to lands is in issue in this cause,” are but the mere opinions of Woolverton as to the legal effect of said deed of defeasance, and being so, they will not support an indictment for perjury. The case of Rex v. Crespigny, 1 Esp. R. 280, is directly in point. That was an indictment for perjury, founded upon an affidavit of Crespigny, that he had not authorized one Dickinson to use his name in suing one Utterson, upon a claim which, among many others, he, Crespigny, had transferred by a certain deed of assignment to said Dickinson. Whether he had authorized such use of his name depended upon the construction given to that deed of assignment, and Lord Kenyon held that an indictment for perjury could not be maintained where the supposed perjury depended upon the construction of a deed, and directed the jury to acquit the defendant.

A. A. Hammond and J. H. Bradley, for the state.

W. P. Bryant and /. A. Wright, for the defendant.

In this case, the whole of the affidavit being set forth in the indictment, the question on the construction of the oath is presented upon the motion to quash.

Per Curiam.

The judgment is affirmed.  