some out, and the property was stolen by the hands of one of those who were in the shop, those on the outside were held equally guilty as principals.(w) In petit larceny, there can be no accessaries. Those who procure, aid, or advise, are principals; and those who merely assist the felon's escape are not, at common law, regarded as criminal.(x) Nor at common law, did the knowingly receiving stolen goods make a man accessary, unless he harbored or assisted the original offender. This offence was only a misdemeanor and could not be punished with any severity adequate to its mischievous effects. (y) Indictment against receivers and accessaries.] In an indictment under the statute, for receiving stolen goods, it is not necessary to allege that the goods were received upon any consideration passing between the thief and the receiver. (2) Where, in such an indictment, the charge was that the prisoner had feloniously received of an ill-disposed person, to the jurors known as D. B., a cow, the property of, &c. which had then lately before been stolen by the said ill-disposed person, with knowledge of the felony; and the verdict of the jury was, that the prisoner was guilty of receiving the cow, knowing her to be stolen, without finding by whom the property was stolen, the conviction was held proper. (a) But whenever the principal is known, the averment ought to be according to the facts, or the defendant will be acquitted.(b) In an indictment against the receiver, it is not necessary to aver, nor on the trial to prove, that the person who stole the property has been convicted.(c) The common form of an indictment for receiving stolen goods is to state first, the fact of the stealing of them by the thief, and then the receipt of them by the receiver; he then and there well knowing the goods to have been feloniously stolen. There is no occasion to state the time or place as to the original stealing. It will suffice if it be stated as to the offence of the receiver. (d) Whenever a variance is material as to the principal, it is material and available to the accessary. (e) When the defendant is indicted as an accessary, it is sufficient to state that the principal was duly convicted. (f) The words "well knowing" are a sufficient averment that the defendant knew the goods to be stolen.(g) If the indictment state that F. M. received the goods, "he the said T. M. knowing," &c., the words "he the said T. M." in which the name is wrong, may be rejected as surplusage.(h) Receivers of stolen property may be indicted and tried in any county where they received or had such property, notwithstanding the theft was committed in another county.(i) Evidence.] On an indictment under our statute, on which the receiver may be punished, though the principal felon is not convicted, the latter may be examined as a witness on the trial.(k) (h) 1 Leach, 109. (k) 1 Leach, 418, 19. 2 id. 927, in notes. See also 3 Chit. Cr. L. 959. CHAPTER V. Offences affecting the Administration of Justice. Under this head we are to consider, 1. Perjury, and subornation of perjury. 2. Bribery, and corruption. 3. Escapes from prisons; assisting therein; rescue. 1. PERJURY, AND SUBORNATION OF PERJURY. Perjury.] By the revised statutes perjury is defined to consist in wilfully and corruptly swearing, testifying or affirming falsely to any material matter upon any oath, affirmation or declaration, legally administered-1. In any matter, cause or proceeding depending in any court of law or equity, or before any officer thereof; 2. In any case where an oath or affirmation is required by law, or is necessary for the prosecution or defence of any private right, or for the ends of public justice; 3. In any matter or proceeding before any tribunal or officer created by the constitution or by law, or where any oath may be lawfully required by any judicial, executive, or administrative officer. (1) The punishment is, disqualification as a witness, and, if the perjury be committed on the trial of an indictment for a capital offence or other felony, then imprisonment for a term not less than ten years. If committed on any other trial, inquiry or case, then for a term not more than ten years.(m) False swearing at elections, and in some other cases particularly specified, is also declared by the statute to be perjury.(n) Whenever it shall appear to any court of record that any witness or party has testified in such a manner as to induce a reasonable presumption of perjury on his part, such court may immediately commit such witness or party to prison; and may bind over the witness to testify before the grand jury and on the trial, to establish such perjury. Such court may also, by order, detain any papers or documents produced by either (1) 2 R. S. 681, § 1. (m) Id. ib. § 2. (n) 1 id. 149. § 1. Id. 217. 2 id. 185. party which are deemed necessary to be used on such prosecution for perjury, and direct them to be delivered to the district attorney.(o) The provisions of the statute respecting perjury having thus been stated, the crime will now be fully considered as an offence at common law; the statute not creating any new offence, but being merely declaratory of the law previously existing. Perjury by the common law is a wilful false oath, by one who being legally required to depose the truth in a proceeding in a course of justice, swears positively, in a matter material to the point in issue, whether he be believed or not.(p) We shall notice, 1. The oath; 2. The indictment or complaint; 3. The evidence. 1st. The oath.] In order to constitute the offence of perjury, at common law, the following things are necessary: 1. The oath must be administered by a competent authority; 2. It must be taken in a judicial proceeding; 3. The fact sworn to must be material to the question in issue; 4. The assertion must be absolute; 5. The oath must be false; 6. The intention must be wilful. 1st. The oath must be administered by a competent authority.] If the oath appears to have been taken before a person who had no lawful authority to administer it, or who had no jurisdiction of the cause, the defendant must be acquitted. (q) It is not necessary, however, in the indictment to show the nature of the authority of the person administering the oath.(r) But enough must be shown to give the tribunal jurisdiction. Thus on a submission by bond to arbitrators, and perjury charged in an oath before them, the bonds must be produced. (s) The revised statutes specify the persons who are authorized to administer oaths;(t) and the manner in which they are to be administered.(u) And it is declared perjury to swear falsely in any form authorized by law. (v) It has been decided that a sheriff or coroner has no power to take the affidavit of a plaintiff in rcplevin, as to the ownership of the property specified in the writ.(w) As to the manner of administering the oath, the general rule is that every man should be sworn, or bound, according to the ceremonies of his own religion; so as to impose upon him an obligation to speak the truth, under a belief in the existence of a deity, and a state of future rewards and punishments; and if he believes not in these his evidence is not admissible.(x) If an oath be administered out of the state, although by a judge of this state, no indictment for perjury will lie here.(y) False swearing, in a voluntary affidavit made before a justice of the peace before whom no cause is depending, is not perjury.(2) No false swearing before individuals acting merely in a private capacity, or before officers who have no legal jurisdiction to administer the particular oath in question, will amount to perjury.(a) 2d. The oath must be taken in a judicial proceeding.] For instance, by a witness, at a trial, or in answer to a bill in equity ;(b) or in depositions in a court of equity;(c) or in an affidavit in any of the superior courts; or upon a commission for the examination of witnesses; (d) or in justifying bail in any of the courts; or upon an examination before a magistrate ;(e) or in a judicial proceeding in any court, whether of record or not.(ƒ) Even though the person administering the oath has lawful authority to do so, still, if it is not taken in a judicial proceeding, it is no perjury. Therefore, taking a false oath before a surrogate to procure a marriage license is no perjury.(g) Where a party swore false in an affidavit, which, from certain omissions in the jurat, could not be received in the court where it was sworn, the perjury was held complete at the time of the swearing. (h). So a party filing a bill for an injunction, and making an affidavit of matters material to it, is indictable for perjury committed in that affidavit, though no motion is ever made for an injunction.(i) But no oath made in a mere private concern, however wilful or malicious, as in entering into a contract, is an indictable offence; nor can any criminal proceeding be maintained for the violation of an oath to perform any duties in future.(k) Neither can any prosecution be supported for perjury in a voluntary affidavit taken extra-judicially before a magistrate ;(1) and even where an oath is required by act of parliament, in an extrajudicial proceeding, the breach of that obligation does not seem to amount to perjury, unless the statute contains an express provision to that ef |