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especial intent to liberate or to aid in the escape of any particular prisoner need not be proved." Expert testimony will be received to show how articles, which are alleged to have been furnished to aid an escape, may be used for that purpose.

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By statute it is also a crime for a person confined in jail to attempt to escape. The accused under such a statute cannot show as a defense that he was sent out to work without a guard to a certain place and that because he was without a guard he escaped. 33

§ 465. Illegality of arrest, when relevant.—It is generally presumed, in the absence of evidence to the contrary, that courts of general or superior jurisdiction have acted regularly and legally within the boundaries of their powers and jurisdiction," and that public officials have obeyed the law and done their duty. But the accused, whether a prisoner under indictment who has escaped or attempted to do so, a person confined under civil process,35 or an official charged with a voluntary escape, may show that the detention was without any warrant, or under one issued by a court having no jurisdiction.38 If the legality of the custody is attacked the burden of proof to convince the jury of the legality of the custody is upon the state. 39 The records of the committing court and the warrant itself are relevant to show the lawfulness of the custody. If the lawfulness of the custody is proved, evi

1 Hurst v. State, 79 Ala. 55, 58; Holland V. State, 60 Miss. 939; Vaughan v. State, 9 Tex. App. 563; Simmons v. State, 88 Ga. 169, 14 S. E. 122.

32 Watson v. State, 32 Tex. Cr. 80, 22 S. W. 46.

33 State v. Wright, 81 Vt. 281, 69 Atl. 761.

34 Underhill on Ev., § 232.

35 Housh v. People, 75 Ill. 487, 491; State v. Leach, 7 Conn. 452, 456, 18 Am. Dec. 118.

36 Commonwealth v. Barker, 133 Mass. 399; Housh v. People, 75 Ill. 487, 491.

37

People v. Ah Teung, 92 Cal. 421, 425, 28 Pac. 577, 15 L. R. A. 190n;

37

36

State v. Hollon, 22 Kan. 580, 584: State v. Clark (Nev., 1909), 104 Pac. 593.

38 Housh v. People, 75 Ill. 487, 491; Martin v. State, 32 Ark. 124, 129.

39 State v. Hollon, 22 Kan. 580, 584; State v. Beebe, 13 Kan. 589, 593, 595, 19 Am. 93; State v. Jones, 78 N. Car. 420, 422; State v. Baldwin, 80 N. Car. 390, 393; 2 Bish. C. L., § 1065.

40 State v. Whalen, 98 Mo. 222, 11 S. W. 576. The fact that a person was in lawful custody who was accused of resisting his jailer must be proved by the mittimus. People v. Muldoon, 2 Park. Cr. (N. Y.) 13. The distinction is very clear between an imprisonment without process, and

dence that the prisoner was subsequently acquitted is irrelevant.*1 Nor can the accused be permitted to introduce evidence of the filthy and unwholesome condition of the jail to show his escape was absolutely necessary to preserve his health unless he shows he had exhausted all lawful means of obtaining relief by complaining to the authorities. Nor can one who is on trial for an escape prove in his defense that he was a trusty, or that after his escape he paid his fine to the sheriff, or that he escaped to avoid unmerited punishment at the hands of his jailer.13

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§ 466. Perjury-The intent to swear to what is false. This crime may be defined as the taking of a willful false oath by one who, being lawfully required to depose the truth in any judicial proceeding, swears absolutely in a matter material to the point in question. Proof of a willful intention to swear falsely is necessary. 46 It is for the jury to determine whether the accused was

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hence wholly illegal, and an imprisonment under process which is substantially legal, but which may be technically irregular. The fact that the imprisonment was without process may always be shown. But the courts rather discourage the practice of attacking process collaterally by rejecting evidence of mere technical irregularities therein. State v. Murray, 15 Me. 100, 103; State v. Armistead, 106 N. Car. 639, 644, 10 S. E. 872; Commonwealth v. Morihan, 4 Allen (Mass.) 585; People v. Ah Teung, 92 Cal. 421, 426, 28 Pac. 577,

45

Commonwealth v. Smith, 11 Allen (Mass.) 243.

46 I Hawk's P. C., p. 429, § 2; McLaren v. State, 4 Ga. App. 643, 62 S. E. 138; People v. Martin, 175 N. Y. 315, 67 N. E. 589, 97 Am. St. 628; affirming 17 App. Div. (N. Y.) 396, 79 N. Y. S. 340; State v. Faulkner, 175 Mo. 546, 75 S. W.

116; State V. Luper (Ore., 1908), 95 Pac. 811; Goodwin v. State, 118 Ga. 770, 45 S. E. 620; Pilgrim v. State (Okla. Cr. App., 1909), 104 Pac. 383; Elliott Evidence, § 3078. To constitute perjury the party charged must take an oath before some competent

15 L. R. A. 190n. "State v. Lewis, 19 Kan. 260, 265, tribunal or officer that he will testify, 27 Am. 113n.

declare, depose or certify truly that

State v. Davis, 14 Nev. 439, 445, his written testimony, declaration or 33 Am. 563.

Johnson v. State, 122 Ga. 172, 50 S. E. 65; State v. King, 71 Kan. 287, 80 Pac. 606.

"A prosecution in a municipal court for the violation of an ordinance is within the statute. Gardner v. State, 80 Ark. 264, 97 S. W. 48.

certificate by him submitted was true; when in fact some material matter so testified, declared, or certified by him was false and untrue and known by him at the time of taking such oath to have been false and untrue. United States v. Richards, 149 Fed. 443. The elements of the crime of perjury to be alleged and proved are

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or was not honestly mistaken in testifying. It is not sufficient to prove that testimony, alleged to be false, has been given, and that it was false. It must also be proved beyond a reasonable doubt that the accused knew its falsity, and that he willfully, corruptly, and with deliberation and consideration, swore to it as true." Evidence of the conduct and actions of the accused while he was testifying, as, for example, that he was insolent, and had to be rebuked by the court, and of his manner of speaking when on the witness stand, is relevant to show guilty knowledge and intent. It may also be shown for the same purpose that the accused had tried to induce another witness to give false testimony." The fact that perjury is the result of a conspiracy to commit some other crime permits the evidence to take a wide range. The facts connected with or growing out of the conspiracy may be shown for the purpose of establishing the guilty intent of the accused, or to show knowledge on his part though such evidence may tend to show that he has committed another crime.5

a judicial proceeding or course of justice; the swearing of defendant to give testimony therein; his testimony; its falsity, and its materiality to the issue or point of inquiry. People v. Tatum, 60 Misc. (N. Y.) 311, 112 N. Y. S. 36. Circumstantial evidence in prosecution for perjury, see Elliott Evidence, § 3087; 103 Am. St. 902, note. Proof of other offenses in prosecution for perjury, seo 105 Am. St. 983, note; materiality of evidence, see Elliott Evidence, § 3079; presumptions, § 3072; burden of proof, 3071; materiality, 88 3080, 3081; the best evidence, § 3083; admissions and confessions, § 3088. Evidence of good character, see 103 Am. St. 902. The res gesta, see Elliott Evidence, § 3086. Testimony of accomplice, see 98 Am. St. 175, note. Weight and sufficiency of evidence, see 10 L. R. A. 749, note. Defenses, see Elliott Evidence, § 3090; variance, 3091; questions of law and fact, 3073.

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"People v. German, 110 Mich. 244, 68 N. W. 150; People v. Ross, 103 Cal. 425, 37 Pac. 379; Davidson v. State, 22 Tex. App. 372, 3 S. W. 662; People v. Stone, 32 Hun (N. Y.) 41; McClerkin v. State, 20 Fla. 879: Williams v. Commonwealth, 91 Pa. St. 493; State v. Brown, 110 La. 591, 34 So. 698; Nurnberger v. United States, 156 Fed. 721, 84 C. C. A. 377; People v. Van Tassel, 26 App. Div. (N. Y.) 445, 50 N. Y. S. 53; United States v. Kenney, 90 Fed. 257; Tidwell v. State, 40 Tex. Cr. 38, 47 S. W. 466, 48 S. W. 184; Goodwin v. State, 118 Ga. 770, 45 S. E. 620; State v. Loos (Iowa, 1909), 123 N. W. 962. Foster v. State, 32 Tex. Cr. 39. 22 S. W. 21.

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§ 467. Materiality of the testimony.-The materiality of the testimony which is alleged to be false must be established satisfactorily. Where there is no dispute as to what the accused testified whether the testimony was material is for the court.52 The opinions of witnesses who heard it that it was or was not material are never received.53

As a rule of law the evidence which is alleged to be false is material if it prove or tend to prove or to disprove any fact which itself was material. Whether evidence is or is not material is not to be determined by the effect which it in fact did have on the case but rather by the effect which it could have had assuming that it were true. Thus, for example, all the testimony by a witness before the grand jury which might legally affect their find

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State v. Faulkner, 175 Mo. 546, 75 S. W. 116; State v. Dineen, 203 Mo. 628, 102 S. W. 480; State v. Brown, III La. 170, 35 So. 501; Bledsoe v. State, 64 Ark. 474, 42 S. W. 899; State v. Moran, 216 Mo. 550, 115 S. W. 1126; State v. Cline, 146 N. Car. 640, 61 S. E. 522; State v. Faulkner, 175 Mo. 546, 75 S. W. 116; People v. Corrigan, 195 N. Y. 1, 87 N. E. 792; Gardner v. State, 80 Ark. 264, 97 S. W. 48; State v. Dineen, 203 Mo. 628, 102 S. W. 480; People v. Chadwick, 4 Cal. App. 63, 87 Pac. 384, 389; Brown v. State, 47 Fla. 16, 36 So. 705; Wilkinson v. People, 226 Ill. 135, 80 N. E. 699; Leak v. State, 61 Ark. 599, 33 S. W. 1067; Masterson v. State, 144 Ind. 240, 43 N. E. 138; State v. Swafford, 98 Iowa 362, 67 N. W. 284; People v. Macard, 109 Mich. 623, 67 N. W. 968; Rich v. United States, 1 Okla. 354, 33 Pac. 804. Perjury may be assigned on the giving of false testimony which if true would have been incriminating, as where a witness before a grand jury is compelled to incriminate himself. State v. Lehman, 175 Mo. 619, 75 S. W. 139.

52 State v. Caywood, 96 Iowa 367,

65 N. W. 385; State v. Swafford, 98 Iowa 362, 67 N. W. 284; Hanscom v. State, 93 Wis. 273, 67 N. W. 419; State v. Park, 57 Kan. 431, 46 Pac. 713; Powell v. State, 36 Tex. Cr. 377, 37 S. W. 322; Grissom v. State, 88 Ark. 115, 113 S. W. 1011; State v. Brown, 128 Iowa 24, 102 N. W. 799; Wilkinson v. People, 226 Ill. 135, 80 N. E. 699; State v. Dineen, 203 Mo. 628, 102 S. W. 480; Maroney v. State, 45 Tex. Cr. 524, 78 S. W. 696; Saucier v. State (Miss.), 48 So. 840; Brooks v. State (Ark., 1909), 121 S. W. 740; People v. Bradbury (Cal., 1909), 103 Pac. 215.

63 Foster v. State, 32 Tex. Cr. 39, 22 S. W. 21; Washington v. State, 23 Tex. App. 336, 5 S. W. 119; Gordon v. State, 48 N. J. L. 611, 7 Atl. 476; Peters v. United States, 2 Okla. 116, 33 Pac. 1031; Butler v. State, 36 Tex. Cr. 444, 37 S. W. 746; State v. Sutton, 147 Ind. 158, 46 N. E. 468. The fact that evidence is cumulative does not prevent it from being material. State v. Faulkner, 175 Mo. 546, 75 S. W. 116.

54 State v. Hoel, 77 Kan. 334, 94 Pac. 267.

ing or refusing to find an indictment is material.55 It is not necessary to show that the accused knew his testimony was material. 56 Testimony of the accused falsely denying that he had made contradictory statements is material."

§ 468. Number of witnesses required and corroboration of single witness to prove falsity.-According to the earlier cases no conviction of perjury could be had unless the falsity of the evidence given under oath was proved by the direct evidence of two credible witnesses, the evidence of the second witness being required to overcome the presumption of innocence which the law indulged in favor of the accused.58 Such is not now the law. The accused may be convicted on the evidence of one witness, which, however, must in all cases be corroborated. The corroboration by circumstances must be strong, though it need not be equivalent or tantamount to another witness." But it must be clear and positive and so strong that, with the evidence of the witness who testifies directly to the falsity of the defendant's testimony, it will convince the jury beyond a reasonable doubt.60

State v. Sargood, 80 Vt. 415, 68 464, 20 S. W. 210; State v. Miller, 44 Atl. 49. Mo. App. 159; State v. Gibbs, 10 56 State v. Sargood, 80 Vt. 415, 68 Mont. 213, 25 Pac. 289, 10 L. R. A. Atl. 49. 749n; People v. Stone, 32 Hun (N. Brown v. State, 47 Fla. 16, 36 Y.) 41; Waters v. State, 30 Tex.

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I Greenl. on Ev., § 257; State v. Peters, 107 N. Car. 876, 12 S. E. 74; Sweat v. Commonwealth (Ky.), 96 S. W. 843, 29 Ky. L. 1067; Saucier v. State (Miss.), 48 So. 840; Kelley v. State, 51 Tex. Cr. 507, 103 S. W. 189; Parham v. State, 3 Ga. App. 468, 60 S. E. 123; Stamper v. Commonwealth (Ky.), 100 S. W. 286, 30 Ky. L. 992; State v. Rutledge, 37 Wash. 523, 79 Pac. 1123; Brooks v. State (Ark., 1909), 121 S. W. 740. See Elliott Evidence, § 3089.

Commonwealth v. Butland, 119 Mass. 317; State v. Blize, III Mo.

App. 284, 17 S. W. 411; McClerkin v. State, 20 Fla. 879; Heflin v. State, 88 Ga. 151, 14 S. E. 112, 30 Am. St. 147; United States v. Wood, 14 Pet. (U. S.) 430, 10 L. ed. 527; United States v. Hall, 44 Fed. 864, 10 L. R. A. 324; Harris v. People, 64 N. Y. 148; People v. Hayes, 70 Hun (N. Y.) III, 24 N. Y. S. 194; Reg. v. Braithwaite, 8 Cox C. C. 254; Reg. v. Shaw, 10 Cox C. C. 66; Commonwealth v. Parker, 2 Cush. (Mass.) 212; State v. Pratt, 21 S. Dak. 305, 112 N. W. 152; Grady v. State, 49 Tex. Cr. 3, 90 S. W. 38; Stamper v. Commonwealth (Ky.), 100 S. W. 286, 30 Ky. L. 992; State v. Rutledge, 37 Wash. 523, 79 Pac. 1123; State

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