defined.

S 146. The term "prisoner" in this chapter includes "Prisoner" every person held in custody under process of law issued from a court of competent jurisdiction whether civil or criminal, or under any lawful arrest.

CHAPTER IV.

FORGING, STEALING, MUTILATING AND FALSIFYING
JUDICIAL AND PUBLIC RECORDS AND DOCUMENTS.

SECTION 147. Larceny, destruction, &c., of records by officers having them in custody.

148. Larceny, destruction, &c., of records by other persons.

149. Offering false or forged instruments to be filed or recorded.

S147. Every clerk, register or other officer having the custody of any record, map or book, or of any paper or proceeding of any court of justice filed or deposited in any public office, who is guilty of stealing, willfully destroying, mutilating, defacing, altering or falsifying or fraudulently removing or secreting such record, map, book, paper or proceeding, or who permits any other person so to do, is punishable by imprisonment in a state prison not exceeding five years, and in addition thereto forfeits his office.

Founded upon 2 Rev. Stat., 680, § 70.

S 148. Every person not an officer such as is mentioned in the last section, who is guilty of any of the acts specified in that section is punishable by imprisonment in a state prison not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.

See 2 Rev. Stat., 680, § 69.

$149. Every person who knowingly procures or offers any false or forged instrument to be filed, registered or recorded in any public office within this State, which instrument, if genuine, might be filed or registered or recorded under any law of this State or of the United States is guilty of felony.

Porjury defined.

CHAPTER V.

PERJURY AND SUBORNATION OF PERJURY.

SECTION 150. Perjury defined.

151. "Oath" defined.

152. Oath of office.

153. Irregularities in the mode of administering oaths.

154. Incompetency of witness no defense for perjury.

155. Witness' knowledge of materiality of his testimony not

necessary.

156. Making of deposition, &c., when deemed complete.

157. Statement of that which one does not know to be true. 158. Punishment of perjury.

159. Summary committal of witnesses who have committed

* perjury.

160. Witnesses necessary to prove the perjury, may be bound

over to appear.

161. Documents necessary to prove such perjury may be detained. 162. Subornation of perjury defined.

163. Punishment of subornation.

164. Convict of perjury declared incompetent as a witness.

S 150. Every person who, having taken an oath that he will testify, declare, depose or certify truly before any competent tribunal, officer or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury.

Proposed modification of the law.—The definition of perjury given in the Revised Statutes, was as follows: "Every person who shall willfully and corruptly swear, testify, or affirm 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 defense 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."

"Shall upon conviction be adjudged guilty of perjury," &c., 2 Rev. Stat., 681, § 1.

This was a considerable extension of the common law definition, which embraced only cases in which the false testimony was given in a judicial proceeding. But the enlarged definition given by the Revised Statutes appears to have been overlooked by subsequent legislatures. For a practice has grown up of making express provision in statutes authorizing any new mode of investigation or inquiry, that false testimony given under the statute shall be perjury.

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. The 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 later 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 this act, such offense 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, &c., to administer oaths to witnesses brought before such committee; 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 willfully 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 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 sections cited declare 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 affidavit. 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, &c., 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 Sept., 1858, guilty of perjury.

Laws of 1863, ch. 90, § 15. The act, which is for the protection 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.

It is obvious that by force of the definition of perjury contained in the Revised Statutes, false swearing upon the examination or proceeding 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. Yet, either from a
want of clearness in the general definition, or from the
fact that under the Revised Statutes there still remained
cases in which false swearing was not perjury—e. g., the
case of mere voluntary oaths. (See People v. Travis, 1
Park. Cr., 213, where it is held that perjury cannot be
assigned of a false oath to a protest taken before a
notary public as part of the preliminary proofs of loss
under a policy of marine insurance.) The penalty of per-
jury has been declared again and again; of course giving
rise to a question in respect to similar statutes in which the
express declaration may be omitted, whether perjury can
be alleged of a violation of the statute oath. To simplify
the existing law and expunge from the statute book these
multiplied provisions covering so nearly the same ground,
the commissioners propose, by a subsequent section (in-
serted in the chapter entitled "of other offenses against
public justice," to declare it a misdemeanor to administer
or to take any oath except in the cases there specified.
And they propose by the sections in the text to extend
the penalties of perjury to violation of all judicial oaths
authorized by law, as well as to violations of oaths required.

"Testify, declare, depose or certify." It is not intended
to confine the definition of perjury to testimony and
depositions, properly so called: on the contrary, it is the
intention of the commissioners to frame section which
shall embrace every class of statement which, by law,
may be attested by an oath applying to the particular
statement in distinction from the general oath taken by
public officers. Nearly every mode of oral statement
under oath is embraced by the term "testify;" and nearly
every written one in the term "depose." But as doubts
may arise as to the full extension of these terms, in
peculiar cases the commissioners have added "declare"
and "certify," in order that all modes of statement may
be clearly included.

defined.

$151. The term "oath," as used in the last section, "Oth" includes an affirmation, and every other mode of attesting the truth of that which is stated, which is authorized by law.

The modes of administering oaths and affirmations in various cases, are prescribed by Rep. Code Civ. Pro., §§ 1873, 1878.

S 152. So much of an oath of office as relates to the future performance of official duties is not such an oath as is intended by the previous sections.

Oath of office.