The following are the leading instances of such provisions:

Laws of 1829, ch. 368, § 9.-This act authorizes the canal board to subpoena witnesses, to be examined before them, when the interests of the State require it; and section 9 declares willful false swearing before the board to be perjury.

Laws of 1834, ch. 201, § 7.-This act authorizes an examination to be instituted by the superintendent of the Onondaga salt springs, and the section cited declares false swearing upon such examination to be perjury. In the latter act, concerning the salt springs (Laws of 1859, ch. 346), an examination is authorized as in the act of 1834, ch. 201, but the unnecessary provision, declaring false swearing perjury, is omitted.

Laws of 1837, ch. 150, § 42.-This statute relates to the powers and duties of the commissioners for loaning United States moneys, and directs the manner in which they shall execute their trust. The section cited prescribes that "if any person shall falsely swear or affirm in any of the cases where an oath or affirmation is required to be taken by this act, or shall willfully and knowingly act contrary to any oath or affirmation he has taken in pursuance of the act, such offence shall be deemed to be perjury.

Laws of 1837, ch. 430, § 8, declares a party to the record who swears falsely upon the examination authorized by the usury act, guilty of perjury.

Laws of 1842, ch. 130, tit. vii., § 1.—This is the statute regulating elections. After providing that when any person offering to vote is challenged, the inspectors shall tender to him an oath to answer fully and truly, and shall then put certain questions the act declares false swearing on such examination to be perjury.

Laws of 1839, ch. 389, § 1 (repealed by the act of 1842, above cited), had a provision of the same purport.

Laws of 1843, ch. 57, § 4; Laws of 1855, ch. 20, § 4.-These acts authorize chairmen of committees of common councils, etc., to administer oaths to witnesses brought before such committees, and declare any false swearing in testimony so taken to be perjury. Laws of 1849, ch. 115, § 19.—This statute makes it the duty of clerks of Erie county to render periodical accounts of official fees and disbursements, the correctness of which must be verified by affidavit. Section 19 declares every person who shall will

fully swear falsely in verifying any such account guilty of perjury.

Laws of 1854, ch. 332, § 8.-This declares willful false swearing to any oath or affidavit which may be lawfully required by any rules and regulations of certain canal officers to be perjury.

Laws of 1854, ch. 398, tit. iii., § 3.—This act provided for an enrollment of the militia, and authorized any person who claimed exemption from duty to file an affidavit of the facts, as the basis of an examination of his claim to be made by the assessors; and the section cited declares that to swear falsely in such affidavit is perjury.

Laws of 1859, ch. 44, tit. iv., § 6.-This section authorizes the trustees of the village of Monrovia to examine on oath any property owner claiming a reduction of taxes, and declares willful false swearing on such examination to be perjury.

Laws of 1859, ch. 380, §§ 13, 14.-This is the registry act for the city of New York. It authorizes certain questions to be put to electors under oath by inspectors of election and by the board of registration. The section cited declares false swearing perjury.

Laws of 1859, ch. 470, § 7.—This statute provides for the sale of certain lands belonging to the State, and directs officers therein named to file reports verified by affidavits. Section 7 makes all false swearing, under any of the provisions of the act, perjury.

Laws of 1860, ch. 259, § 25.—The statute is amendatory of the Metropolitan Police Commissioners' act. The twenty-fifth section, after empowering the board of Metropolitan Police Commissioners to subpoena witnesses, etc., declares false swearing by a witness upon any necessary proceeding under the regulations established by the commissioners, perjury.

Laws of 1860, ch. 465, § 4, declares witnesses testifying falsely before the commissioners appointed to ascertain and collect the damages caused by destruction of property at quarantine grounds, on Staten Island, in September, 1858, guilty of perjury.

Laws of 1863, ch. 90, § 15.-The act, which is for the protec tion and improvement of the Tonawanda band of Seneca Indians, authorizes oaths to be administered for several purposes, and provides in section 15 that willful false swearing by any person to whom any oath may be administered according to the act shall be deemed perjury.

Laws of 1864, ch. 253, § 9, provides for the punishment of taking false oaths under the soldiers' voting act.

By force of the definition of perjury contained in the Revised Statutes, false swearing upon the examination, authorized by either of the above mentioned statutes, would have been punished as perjury, without any express provision to that effect in the statute authorizing the proceeding.1

Perjury may be committed by a witness in a statute arbitration, although the arbitrators were not sworn pursuant to the statute; their oath being waived by the parties. If after a witness is sworn before arbitrators, and new parties and subjects of controversy are added by submission, it is a different cause, and it is not perjury, without a new oath, to testify falsely.3 Informalities in the mode of referring an action were held immaterial on an indictment for perjury, committed in giving false testimony before the referee.4

Perjury may be committed in an affidavit made for the purpose of procuring a process, e. g., a certiorari, though the partic ular case made is one in which the issue of the process is pro hibited. Perjury may also be committed upon the examination of bail, as to their competency.

7. Evidence of One Witness not Sufficient to Procure Conviction.

The evidence of one witness is not sufficient to convict the defendant on an indictment for perjury, as in such case there would be only one oath against another. But this rule must not be understood as establishing that two witnesses are necessary to disprove the fact sworn to by the defendant, for if any other material circumstance be proved by other witnesses, in confirma tion of the witness who gives the direct testimony of perjury, it may turn the scale and warrant a conviction.R

So if there be only one witness, circumstances strongly corrob ative are enough, although not in themselves sufficient to prove a

Rep. Coms. of Penal Code, p. 49.

21 Den., 440; Howard v. Sexton, 4 Com., 157.

Bullock v. Koon, 4 Wend., 531.

Peo. v McGinnis, 1 Park. Cr., 387.

Pratt v. Price, 11 Wend., 127.

• Tomlinson's Case, 4 City H. Rec., 125.

7

4 Blac. Com., 358; 1 Phil. on Evidence, 151; Reg. v. Muscot, 10 Mod.. 193. Rex v. Leewich, 6 Geo., 3; 1 Phil. on Evidence, 152, 7th ed.

fact. But where there is only one direct witness, the evidence should be strong to confirm that witness in order to warrant a conviction.2

8. Persons Convicted of Perjury Incompetent as Witnesses.

A person who, upon conviction, shall be adjudged guilty of perjury, shall not thereafter be received as a witness, to be sworn in any matter or cause whatever, until the judgment against him be reversed. The same rule applies upon a conviction for subornation of perjury. And a person convicted of perjury is an incompetent witness, though he has been pardoned by the Governor and the pardon purports to restore him to all his civil rights, the Legislature having provided that such convict shall not be received as a witness till such judgment be reversed. Such incapacity to testify is a rule of evidence, and not a punishment of the offence.5

9. Courts to Commit for Perjury.

Whenever it shall appear to any court of record that any witness or party, who has been legally sworn and examined in any cause, matter or proceeding pending before such court, has testified in such manner as to induce a reasonable presumption that he has willfully and corruptly testified falsely to some material point or matter, such court may immediately commit such party or witness, by an order or process for that purpose, to prison, or take recognizance, with sureties, for his appearing and answering to an indictment for such perjury. Such court shall thereupon bind over the witnesses to establish such perjury to appear at the proper court to testify before the grand jury and on the trial, in case an indictment be found for such perjury, and shall also cause such immediate notice of such commitment or recognizance, with the names of the witnesses so bound over, to be given to the district attorney of the county. If, on the hearing of such cause, matter or proceeding in which such perjury

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shall have been suspected to have been committed, any papers or documents produced by either party shall be deemed necessary to be used in the prosecution for such perjury, such court may by order detain such papers or documents from the party producing them, and direct them to be delivered to the district attorney.1

XXXV. RAPE.

HAWKINS defines rape to be the having carnal knowledge of a woman by force and against her will.2 BLACKSTONE says that rape is an offence against the female part of his majesty's subjects, but attended with greater aggravation than that of forcible marriage, and is the crime of carnal knowledge of a woman, forcibly and against her will.3 EAST defines the offence to be the unlawful carnal knowledge of a woman by force and against her will.*

Lord HALE says, "That rape is a most detestable crime, and therefore, ought to be severely and impartially punished with death; but, it must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent." He then mentions two remarkable cases of malicious prosecution for this crime that had come to his knowledge, and among them one case where, although the rape was fully sworn, it turned out, upon inspection, to be physically impossible that the party accused could have been guilty of the offence, and concludes: "I mention these instances that we may be the more cautious upon trials of offences of this nature, whenever the court and jury may, with so much ease, be imposed upon without great care and vigilance; the heniousness of the offence many times transporting the judge and jury with so much indignation that they are, over hastily, carried to the conviction of the person accused thereof by the confident testimony of malicious and false witnesses."5

1. The Statutory Offence.

The New York statutes do not prescribe any formal definition of rape, but provide that persons shall be punished who shall be convicted of rape:

1 2 R. S., 681, § 7.

4 Bla. Com., § 210.

• Ch. 41, § 2.

4

1 East. P. C., ch. 4, § 34.

⚫ 1 Hale, 635.