
    The State v. John Cockran.
    Columbia,
    May, 1828.
    Perjury may be assigned on an affidavit made before a Justice of the Peace, charging another magistrate with a misdemeanor, and intended to be the foundation of a prosecution against him for mal-practice in office: And it is immaterial what the proper mode of prosecution may be, whether by impeachment or indictment; and equally so that the prosecution was not proceeded in, or that the mode of prosecution contemplated by the deponent, was inadequate to its object.
    To sustain an indictment for perjury, the false swearing must be plainly wilful arid corrupt: And, therefore, where the evidence furnished strong ground for the presumption, that if the facts sworn to were not literally true, the defendant had, nevertheless, been mistaken merely, and bad sworn to them under the honest belief that they were true, a new trial was awarded.
    Tried before Mr. Justice Gaillard, at Gre.enville, Spring Term, 1828.
    This was an indictment for perjury in an affidavit, made before John Townsend, Esq. a Justice of the Peace, for Greenville District. ’ The affidavit was, in substance, that the deponent, the present defendant, had been summoned before George Bayne, Esq. another Justice of the Peace, at the suit of William Pollard ; that the deponent attended, and requested a postponement 'of the trial on account of the. absence of a witness, and that Bayne refused the postponement, saying it was unnecessary, as the deponent might himself swear off Pollard’s demand; but that after going to trial, Bayne refused deponent the benefit of his oath, and yet allowed Pollard to swear to his demand, and then gave judgment for him.
    It appears that the affidavit was made with a view to obtain a rule against Bayne from the Court of Sessions. It was not left with the magistrate Townsend, nor were any proceedings upon it against Bayne, by Townsend, either asked or contemplated; but it was taken by Cockran to the Circuit Solicitor, who grounded upon it a rule against Bayne, to shew cause why he should not be indicted for mal-practice in office. There was no evidence of any proceedings upon the return of the rule, nor of any further proceedings whatever founded on, or connected with the affidavit.
    The perjury was assigned in the two allegations in the affidavit : 1st. That the deponent had requested a continuance ; 2d. That Bayne had refused him the benefit of his oath.
    Bayne, Pollard, and two other witnesses, brothers of Pollard, swore that Cockran had not applied for a continuance., Another witness, who was produced by the State, swore that Cockran did apply for a continuance ; and all the witnesses agreed that he had sáid something about a postponement on account of the absence of Colonel Walker, who was a witness for him. It was also in evidence, that on a former occasion, Cockran had obtained a continuance of the same case, and for the same cause, to wit, Colonel Walker’s absence. . Colonel Walker was examined, and proved that he would have been a very material witness for Cockran in the civil action. It seems that Pollard’s demand was for fees, due him as a constable: Cockran’s de-fence was, that the cases in which these fees were demanded, were all nulla bona .cases, and that by his agreement with Pollard, no fees were to be charged in such cases. Colonel Walker swore, that such in fact was the agreement; that he was present when the contract was entered into, and that Pollard had expressly agreed not to charge Cockran for fees, but to look to the defendants in each case for them.
    On the second assignment of perjury, it was proved, that Bayne did offer to Cockran to permit him to swear off Pollard’s demand, and that Cockran refused to do so. But two of the witnesses for the State, swore that Cockran refused only to swear off the account generally, but offered to swear to the contract; that he said he could not swear that the services were not rendered, but he was willing to swear that Pollard had agreed not to charge for them: That Bayne refused to receive his oath with these qualifications, and allowed Pollard to swear to Ms account, and gave judgment for him.
    His Honor, the presiding Judge, charged the Jury, that if the defendant had wilfully sworn to what he knew was false, it amounted to perjury; but he intimated his own opinion, that if the facts sworn to were not true, there was yet much reason to believe that the defendant was mistaken only, and had sworn to what he beliéved was the truth. The Jury brought in a verdict of guilty.
    The defendant now moved the Court of Appeals to arrest judgment on the record, on the ground that the affidavit was not one on which perjury could be assigned.
    And if the motion in arrest failed, then for a new trial; on the ground that the evidence was not sufficient to establish, that the facts sworn to were not true, and utterly insufficient to establish that the defendant knew or believed them to be untrue.
    A. W. Thompson, for the motion,
    contended that the affidavit was not an oath in any judicial proceeding, and, therefore, perjury could not be assigned upon it. 2 Ch. Crim. Law, 303, 1 Hawk. P. C. Sec. 1. 2. It charged Bayne with no indictable offence ; and admitting that it charged what might subject him as a magistrate to an impeachment, yet by the 1st Sec. 5th Art. of the Constitution, the exclusive power of impeachment was vested in the House of Representatives, and the affidavit was, therefore, coram non judice. 2 Ch. Crim. Law, 304. The act of 1796, which points out another mode than impeachment for the removal of magistrates, is inconsistent rvith the 3d Sec. 5th Art. of the Constitution, and therefore void: But-even if it be valid, the mode of proceeding pointed out is by indictment. 2 Faust, 83. And the affidavit in this case, was not made with a view to an indictment, but to a rule, which was neither necessary nor proper as a preliminary step to an indictment. Besides, the affidavit charged nothing either impeachable or indictable. It did not impute corrupt motives to Bayne, but all its allegations against him may be referred to error of judgment.
    
      Earle, Solicitor, contra,
    contended that it was the especial duty of Justices of the Peace to receive depositions of infractions of the law, and all such depositions were, therefore, oaths in a judicial proceeding. That perjury may be assigned on such' depositions, follows inevitably from the definition of perjury. 1 Hawk. P. C. Ch. 69, Sec. 1. It is, surely, immaterial how the prosecution must afterwards be carried on, whether by impeachment or by indictment; and equally so, what mode of prosecution the party contemplated, or whether he intended none. That is the business of the prosecuting officers. His offence was comr píete when he had sworn to a false charge of an offence, for which a prosecution of any kind might be carried on. Was such an offence charged 1 It is said corrupt motives were not imputed to Bayne: But he was charged with official acts, committed under circumstances which admitted of no explanation except from corrupt motives. Technical words and epithets were unnecessary in the affidavit; and if the facts had been true, as set forth m the affidavit, Bayne might not only have been impeached, but indicted at Common Law. 1 Ch. Crim. Law, 873. State v. Mitchell, 1 Bay, 267. And the 3d Sec. 5th Art. of the Constitution, provides expressly, that an impeachment shall not exempt the magistrate from an indictment.
    It follows, that it is unnecessary to examine whether the act of 1796 be constitutional or not. But it may be remarked, that the Constitution does not exclude all other modes of removing magistrates, but by impeachment; and under the general grant of legislative power contained in the 1st Sec. 1st Art. of the Constitution, it might well be contended, that the Legislature have full power to ordain any other mode that might be wise and wholesome.
    It is likewise unimportant to notice the argument that the affidavit was made with a view to a rule, and not to an indictment. If the argument were sound, it could not affect the question : But the argument itself is without foundation. The rule was to shew cause why an indictment should not be preferred; and this shews that the indictment was looked to from the first. Whether a rule was either necessary or proper, has nothing to do with the question. It was, at least, a harmless act of official courtesy, and neither vitiated the affidavit, nor disabled the prosecuting officer from afterwards giving out an indictment.
   Nott, J.

delivered the opinion of the Court.

The motion in arrest of judgment is based upon two grounds.’

1st. That the act of Assembly of 1796, 2 Faust, 83, which renders a magistrate liable to be removed from office by the Governor, upon his conviction of a misdemeanor in a Court of Sessions, is unconstitutional; and, therefore, an affidavit made for that purpose, although false, does not constitute the offence of perjury. It is contended, that by the Constitution, all civil officers are to be removed from office by impeachment, and that as a magistrate is a civil officer, he cannot be removed in any other manner. But the removal from office is only intended as a part of the punishment for the misdemeanor; and even though that method of punishment may be unconstitutional, the conviction may be good. And it does not appear to me that there can be any reasonable doubt, but that a magistrate may be indicted formal-practice in office. But even if that should be considered as doubtful, I cannot perceive that it would affect the question. An affidavit, charging, a public officer with a misdemeanor, and with a view of founding a prosecution upon it, must be taken to mean a prosecution in such a mode as the laws and constitution of the State will authorize. If, therefore, it may be made the foundation of a public prosecution, and be intended for that purpose, I think it will be perjury, if wilfully and knowingly false.

Neither do I think it material that the prosecution was not proceeded in: For it might be discontinued on the ground that the charge was known to be false. Another ground relied on is, that the professed object in this case was to obtain a rule against the magistrate, to shew cause why an indictment should hot be preferred against him, and not for the purpose of procuring him to be indicted. And it is contended, that a rule to shew cause in such a case, is irregular and unauthorized by law, and, therefore, such an affidavit cannot be perjury. This ground, I think, susceptible of the same answer as the first. I am not satisfied that the method of proceeding by rule in the first instance, is not both regular and proper. But even if it is not, it cannot affect the present question. The affidavit was intended as the foundation of a prosecution, and the course of proceeding by which that was to be brought about, was quite unimportant to the decision.

2'd. The sepond ground is, that there is no charge of corruption made against the magistrate, and, therefore, the accusation is not such as would subject him either to an indictment or an impeachment. But in that respect, I think the allegation is sufficiently explicit. The charge is, that the magistrate informed him he should not require any other testimony to be adduced, as his own oath would be sufficient, and by that means drew him into the trial, and then refused to let him be sworn. Now although the affidavit does not, in so many words, charge the defendant with being guilty of corruption, the facts are such as, if true, will admit of no other conclusion. It appears to me, therefore, that in a legal point of view, all the necessary ingredients of the offence have been furnished.

It only remains, under the motion for a new trial, to inquire whether the facts have been .sufficiently established. To that end, it was necessary to shew that the oath taken by the defendant was false, and that he knew at the time that he made it, that it was so.. The two allegations on which the perjury is assigned, are, 1st. That the defendant swore he was unprepared for trial for the want of a witness, and requested a postponement of the cause until he could procure his attendance ; but that the magistrate told him that the testimony of his witness would not be required, as his own oath would be sufficient; upon which, he consented to go to trial. 2d. That the magistrate afterwards refused to let him be sworn. This last, I think, has been sufficiently explained to shew that no wilful falsehood was intended. The magistrate did offer to accept the oath of the defendant, but not to the extent to which he desired. So that the whole amount of the charge, probably is, that the defendant was mistaken. The other, however, is a question of more difficulty. The magistrate himself, and the party to the cause, have both sworn positively, that the defendant did not ask for a postponement of the cause, but that he said he was ready for trial. Two other witnesses present, were also imder the same impression. If,therefore, we are to take the testimony of the witnesses, literally, as reported to us by the presiding Judge, there would appear to be a great preponderance against the defendant. But when we look through all the circumstances of the case, it is impossible not to suspect that there must be some mistake in the matter. At the first time appointed for the trial of the cause, the defendant moved for and obtained the postponement of the trial, for the attendance of Mr. Walker, who, he said, was a material witness in his behalf. At the second meeting, Walker did not attend, The defendant, therefore, was as unprepared as he had been in the first instance. It is difficult then to believe that he could have said he was ready for trial, unless he had been led to expect that his own oath would have been conclusive against that of the plaintiff. Ancfthat opinion is strengthened by the fact, that the magistrate did offer to take his oath, but qualified in such a manner, as to deprive him of all the benefit which he expected to derive from it. The materiality of Walker’s testimony was proved by himself on this trial, and went fully to' establish the defence set up by the defendant. It went also to establish another fact, that the plaintiff, before the magistrate, obtained an unjust decree on his own oath, and that the oath of the defendant, which was rejected, was true. The defendant may not have moved formally for a postponement of the trial of his cause before the magistrate : But I think it most apparent, that he went to trial under an impression that the result was to depend upon his own oath, and under that belief, said he was ready for trial. He could not otherwise have said he was ready for trial, when Ms most material witness was absent. He may, by mistake, have sworn to a fact which is not literally true, (of which, however, I doubt much) but I cannot think that he has been guilty of wilful and corrupt perjury. It is, at least, a case which deserves the consideration of another jury, and a new trial must, therefore, be granted.

New trial granted.  