
    David S. Silver vs. The State of Ohio
    Perjury cannot be assigned upon an answer in Chancery, unless the bill call for the answer under oath.
    The mere belief oí a witness is not sufficient to warrant the jury in convicting a man charged with a criminal offence.
    This is a Writ of Error to the Court of Common Pleas of Columbiana County.
    The Plaintiff in Error was prosecuted for Perjury. The record, including the bill of exceptions, discloses the following case:
    The indictment consists of three counts, the principal difference in which is, that the substance of the bill and answer are set out more fully in the first than in the other counts, and that the second count alleges that the bill prayed for an answer under oath. An allegation of the materiality of the matter sworn to is inserted in each count. The indictment alleges that on the 3d of August, 1846, Isaac Groff filed his bill in Chancery against the plaintiff in error, stating that he had borrowed several sums of money of said Silver at different times, and gave notes therefor containing illegal interest. That on the 20th March, 1845, he gave Silver a new note, including the previous notes, and a note formerly given by Silver to Samuel Kemble for $129 82, for about $732, with a warrant of attorney to confess judgment —that to the note there were, certain stipulations and conditions changing the body of the note and forming a part of it — ¡-that there was about $300 of usury embraced in said note — that in May, 1846, Silver requested Groff to pay one Dehoff $200 on the note — that he let Dehoff have $200, took Dehoff’s note and transferred it to Silver, as so much paid on said note of $732, and the same was indorsed by Silver on said note — that on the 28th of June, 1846, Groff made another payment of $200 on said note, which in all made $400 paid thereon — that after said last payment of $200 was Silver cut it off, and the condition also of said note — Silver threatened that unless Groff would pay said note with the $200 cut off, he would go into some remote county of the State and enter up judgment for the whole amount, and that said bill charged that said Silver sought to defraud said Groff, and that said condition and the $200 were cut off for that purpose. The indictment further alleges that said Silver, on the 24th of March, 1847, exhibited to Edward Carroll, a Justice of theJPeace in and for said Columbiana county, his written answer to said bill of Isaac Groff, and being duly sworn by said Carroll, deposed that the matters contained in said answer were true to his best knowledge, information and belief; and that the said answer was on the same day filed in the Court of Common Pleas.
    That in said answer, said Silver, among other things, swore that there was no illegal interest included in the note of $792 26 given on settlement, in March, 1845, nor in a note of $470 26, given on a former settlement and included in said $79226 note — that said Groff never paid him any money on said note of $792 26, which is not indorsed thereon, and that more is actually indorsed than ever was paid him, to wit: sixty dollars.
    Among the assignments of perjury are the following:
    1. That Silver well knew and believed there was illegal interest included in said $792 26 note.
    2. That he knew and believed there was usury in said note of 470 26, and
    3. That he knew and believed that Groff had paid him money, which at the time of answering was not indorsed on said note of $792 26.
    On the trial of the cause it appeared that the bill in Chancery and the answer were both lost. Thereupon the State called Anson L. Brewer, the attorney who filed the bill in Chancery against Silver, to prove the contents of the bill, and especially to state whether it called for an apswer under oath. The testimony was objected to, but the objection was overruled and the testimony received. He stated that as the attorney of Groff he had made out a brief of the bill, that he could not state the . - . specific allegations of the bill, nor its language, without reference to his brief, that the brief was made strongly in favor of Groff, that he could only testify with the aid of the brief, that it was his belief the bill required an answer under oath, though he could not so swear positively,' and that the brief of the bill did not show it. There was no other -testimony to prove that the bill called for an answer under oath, but there was other parol testimony as to the contents of the bill, which was also objected to.
    To prove the contents of the answer" the State produced a paper, which Samuel B. McKenzie, the Clerk of the Court, swore was a true copy of the answer made out by him for one of the parties in the suit, before the answer was lost. This testimony was also objected to, and the objection overruled.
    The jury found the defendant guilty, whereupon a motion was submitted for a new trial, upon the ground of error in receiving parol testimony as to the contents of the bill and answer, because there was no proof that the bill called for an answer under oath, because there was not sufficient proof to contradict the answer of Silver, and for other causes; but the Court refused the motion.
    The reasons assigned for reversing the judgment of the Court of Common Pleas, are in substance the same as those urged for a new trial, and also that the indictment is bad, the first and third counts in not averring that the bill called for an answer under oath, and the second count because it does not make that averment in sufficiently specific terms.
    
      Thomas Ewing, Geo. W. Belden, H. Griswold, Wm. K. Upham, and Wadsworth ip Lee, for Plaintiff in Error,
    cited the following authorities:
    Buller’s Nisi Prius 237; McNally’s Ev. 468; 3 Bac. Ab. Title Ev. 559; 2 Russ, on Crimes, 549; 1 Phil. Ev. 394; Archb. Cr. PI. 122; 2 Stark. Ev. 856 ; Russell’s Crim. Ev. 190 and 759; the State v. Gallimore, 2 Iredell’s Rep. 374; Wheat. Am. Cr. Law, 479; 1 Stark. Ev. 128; 3 Term Ptep. 754 ; 8 East’s Rep. 2844.
    
      Henry Stanbery, (Attorney General) and John Clark, for Defendant in Error,
    cited the following authorities :
    1 Stark. Ev. 5 Amer. Ed. 155, 254, 282, 619; Arch. Cr. PI. 121, 155; Rex v. Laycock, 19 Eng. C. L. Rep. 405; Hoe v. Perkins, 3 Term Rep. 749; 2 Camp. Rep. 112; State v. Rawls, 2 Nott & McCord’s Rep. 331; Ros. Cr. Ev. 812 ; Ch. Cr. Law. 567; 2 Russ, on Cr. 674; Spragg’s case, 14 East’s Rep. 276 ; Commonwealth v. Ross, 2 Mass. Rep. 373 ; Rex v. Hunter, 19 Eng. Com. L. Rep. 306; Rex v. Chadwick, 25 Eng. Com. L. Rep. 344; Commonwealth v. Snell, 3 Mass. Rep. 82; United States v. Reyburn, 6 Pet. Rep. 325; Ph. Ev. 4 Am. Ed. 1066-7 ; Rex v. Jones, 1 Shaw’s Rep. 327; 2 Cow. Rep. 522; 6 Cow. Rep. 118 ; 25 Eng. Com. L. Rep. 415.
   Read, J.

To constitute perjury the oath or affirmation must be material, or be required by, or have some effect in law.

Under the late act, an affidavit of the truth of an answer in Chancery, has no legal effect, unless the bill expressly calls for such answer on oath. Unless called for on oath, the affidavit of the truth of the answer is wholly immaterial; it neither benefits the respondent or injures the complainant. The answer has the same effect, and nothing more, than it would have had, had it not been sworn to.

Hence, to assign perjury upon an answer in Chancery, the indictment should aver that the bill called for an answer under oath.

The 1st and 3d counts not containing this averment are bad. The 2d count is not liable perhaps to this objection, although the averment is so worded that it is objected, that it is an averment of the finding of the jury, and not the fact in the bill. But treating this count as good, it will not support the ment of the Court.

The motion for a new trial is based upon the admission of improper evidence, and the insufficiency of the evidence, if properly admitted, to warrant the verdict.

The Court admitted parol evidence to prove that the bill and answer had been filed, affil upon proof that the bill and answer had been lost or stolen, admitted a certified copy of the answer sworn to by the clerk of the Court. To prove what the party charged actually did swear to, it is contended that the answer itself should be produced, and that a copy is not sufficient. There is much force in the objection, and it may be well said that no person should be subjected to the hazard of a conviction for perjury, upon the possibility of a mistake in the copy. Cases have been referred to in support of the admissibility of the copy, to show that on indictments for perjury, where the production of the instrument is necessary, proof of its loss, destruction, or that it was in possession of the party, would authorize parol proof of its contents. But in these cases, the evidence is the direct declaration of a witness as to what he knows,-and not the mere correctness of a copy. The case of Rex v. Jones, 1 Shaw. 327, cited in Roscoe’s Criminal Ev. 189, was where the defendant was convicted of perjury upon proof of a copy of an affidavit. But in that case it was in proof that the defendant had made use of such copy in the course of the cause, so there was express proof that the correctness of the copy was recognized by the party charged. But although the principle may be admitted that in criminal cases, copies and parol proof of the contents of instruments, may, under certain circumstances, be admitted in proof to convict of crime, yet it should be offered with great caution and be very narrowly restricted by the Courts. For although the maxim may have been so long in use as to be deemed a mere sound, signifying nothing; it is in truth better that ninety-nine guilty persons should escape than that one innocent man should be convicted. Besides, where the charge is for the making or passing a forged instruparoj pr00f that it existed is not so liable to mistake as a ’ r r of exact words upon which perjury is assigned. The existence of a forged or counterfeit instrument is very readily proved by parol, and the necessity of proving its exact words and contents, results from the rule that in charging forgery the instrument must be specifically described, so that if a mistake should occur in the exact description, it would go not to the substance of the crime, but the rule of strictness required in pleading. And if a man should'actually forge an instrument, the hazard of receiving parol proof as to its exact words, would not be a risk to which the prisoner would be subjected upon the body of the offence, but of a violation of the technical correspondence between charge and proof required in a conviction of crime. The rule that a forged instrument should be strictly set out in an indictment is one of caution and safety, and not the substance of the crime. It prevents the possibility of a prisoner being indicted upon one forged instrument and convicted upon another forgery, or of a second conviction upon the same instrument. But still the hazard by the admission of copies or parol proof in such case is not upon the substance of the charge. But upon assignment for perjury upon words written and falsely sworn to, where the omission of a not or particle of negation, may affirm that to be so which was denied, and make the party swear that to be true which was false, goes to the substance of the crime. The best copyists are liable to err, and a poor copyist or unpracticed hand is almost certain to blunder. Hence, I am disposed to deny that perjury can be assigned or established upon an unsupported copy. But this point is not so decided by a majority of the Court. The same objection would apply to the introduction of a copy of the bill, but this was attempted to be proven by the oath of a witness.

In perjury it requires two witnesses, or at least what is equivalent. There is the direct testimony of Groff, the complainant, but it is a matter of very serious doubt with me whether there is proof which is equivalent to the direct testimony of two witnesses, and to this doubt the prisoner would be entitled.

But upon the point that the bill called for the answer or oath, there is a total failure of proof. Brewer swears, “ It is my belief that the bill called for an answer under oath. It is my belief that it did though the brief does not show it, and as near as I can recollect the brief, it is in substance the same as the bill.”

There is no proof that the bill called for the answer under oath— it is mere unsupported belief.

We therefore reverse the judgment, and award a new trial.  