Deckard v. State

Miller, J., delivered the opinion of the Court. The appellant has been tried and found guilty of the crime of perjury. The only matter to be reviewed on this appeal is the judgment overruling a general demurrer to the indictment. The exception taken at the trial to the ruling upon the admissibility of evidence has been very properly abandoned in this Court without argument.

The correctness of that ruling is too clear to admit of a moment’s doubt, and if the appeal rested alone upon lhat exception, there would have been great impropriety of conduct on the part of counsel for the accused in making the affidavit required by the Act of 1872, ch. 316. That Act has introduced a new feature into the administration of criminal law in this State. It allows exceptions to be taken in criminal trials to any ruling or determination of the Court in the same manner as is now practiced in civil cases, and gives an appeal from such ruling or determination, provided the counsel for the accused shall malee oath that such appeal is not ialeen for delay. This proviso was inserted for the purpose of preventing delay in the punishment of offences, by appeals on points too plain to be controverted.

It does not permit a party found guilty of crime to secure a postponement of punish ²⁰¹ ment consequent upon an appeal, by taking this oath, but requires it to be made in all cases where the accused is the appellant, by his counsel, thus requiring a solemn pledge from the judgment and conscience of one who is a member of a learned and honorable profession, that he believes the rulings against his client are erroneous. It is the duty of this Court to see to it, so far as it may have power, that the intention of the Legislature in imposing this wholesome and salutary restriction upon appeals in such cases is not defeated. Rut we assume this affidavit was made not in view of the exception referred to, hut of the judgment overruling the demurrer to the indictment, and was hence very properly made. The perjury assigned is giving wilfully on affirmation, false testimony material to an inquiry into the legality, cause and propriety of the confinement and detention of a party brought before Judge Motter, Associate Judge of the Circuit Court for Washington County, upon a writ of habeas corpus.

It is not doubted that false testimony material to the issue, wilfully given under oath on such an inquiry, would be perjury at common law, as being given in a judicial proceeding, or course of justice, and is therefore within the first class of cases which the Code (Art. 30, sec. 155,) declares shall be deemed perjury. The question then is, does this indictment sufficiently charge the offence? There may be in it unnecessary diffuseness of statement, and much that must be rejected as surplus-age, but this does not vitiate it, provided the Court can see that it sets forth the substance of the offence charged, and that all matters material to constitute the crime, are alleged with such positiveness and directness, as not to need the aid of intendment or implication. It must also be remembered, that the first and second sections of the Statute of 23 Geo. 2, cap. 11, enacted in 1750, entitled “An Act to render prosecutions for perjury, and subornation of perjury, more easy and effectual” are in force in ²⁰² this State.

Kilty's Report of Statutes, 252 ; Alexander’s British Statutes, 766. That statute after reciting in its preamble that “by reason of difficulties attending prosecutions for perjury and subornation of perjury, those heinous crimes have frequently gone unpunished, whereby wicked and evil disposed persons are daily more and more emboldened to commit the same, to the great dishonor of God and manifest let and hindrance of justice,” provides by its first section, “that in every information or indictment to be prosecuted against any person for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what Court, or before whom the oath was taken, (averring such Court, or person or persons, to have a competent authority to administer the same,) together with the proper averment or averments to falsify the matter or matters wherein the perjury or perjuries is or are assigned, without setting forth the bill, answer, information, indictment, declaration or any part of any record or proceeding, either in law or equity, other than as aforesaid; and without setting forth the commission or authority of the Court or person or persons, before whom the perjury was committed ; any law, usage or custom to the contrary notwithstanding.” With these preliminary remarks we proceed to consider the several objections to this indictment presented by the very able and ingenious argument of the appellant’s counsel. 1st. The first objection is that the indictment fails to show that, the Judge had jurisdiction of the question concerning which the alleged perjury was committed. It has been decided (Overton’s case, 45 Eng.

C. L. Rep., 88,) that the Statute of 23, Geo. 2, does not dispense with the necessity of showing distinctly in the indictment, that the false oath was taken in a judicial proceeding, and it is argued that the jurisdiction of a Judge in matters of habeas corpus, is, in this State, special and limited under our ²⁰³ Acts of Assembly, and the familiar doctrine is invoked, that where a special limited jurisdiction, distinct from its general jurisdiction is conferred by statute on any tribunal, its power to act must appear on the face of the proceedings. But in our judgment, this doctrine does not apply to proceedings in cases of habeas corpus. They are not simply proceedings authorized by special statutes which require certain things to be done as conditions precedent, and before authority to act is conferred. The writ of habeas corpus is a common law writ, having for its great object the liberation of persons imprisoned without sufficient cause.

Tbe provisions of our Code, like those of the celebrated Statute of 31, Charles 2, were enacted for the purpose of enforcing the common law, and of securing to the citizen the benefits for which the writ was given, by preventing oppression consequent upon its evasion or delay in its issual and return. Hence, Courts and Judges are clothed with jurisdiction and power to issue it at all times and in all places throughout the State. An immediate or speedy return with production of the body and cause of detention is secured, punishment is prescribed for officers who refuse or neglect to execute it, the Judge who refuses to issue it is made liable to an action by the party aggrieved, and a person once discharged under it is exempted from being again imprisoned for tbe same offence unless surrendered by his bail or convicted of the offence for which he gave bail. It is thus that the common law is enforced.

The first section of the Article in the Code on habeas corpus as amended by the Act of 1867, ch. 144, provides that “the several Circuit Courts of this State and the Circuit Court of Baltimore City, and the several and respective Judges thereof out of Court, and each of the Judges of the Court of Appeals shall have jurisdiction over the whole State in all matters relative to habeas corpus, except those involving the relation of master and apprentice.” ²⁰⁴ This confers jurisdiction in the broadest and most general terms over a common law writ. The Act of 1862, ch. 36, repeals the original third section of the Article in the Code, and enacts in lieu thereof, that “fif any person be committed or detained for any'crime, or under any color or pretence whatsoever, he or any one on his behalf may complain by petition to any one of the Courts or Judges mentioned in the first section of this Article, and the said Court or Judge shall forthwith grant a writ of habeas corpus, directed to the officer or other person in whose custody the party detained shall be, returnable immediately before the said Court or Judge granting the same: provided, the person detained be not committed or detained for treason or felony, plainly expressed in the warrant of commitment, or be not convict, or in execution by legal process: and provided, that if the person detained be so detained under color of a warrant of commitment, the petition presented by him or on his behalf accompanied by a copy of the warrant of commitment or detainer or cause of commitment or detainer, or otherwise by an affidavit that a copy thereof was demanded by him of the person in whose custody the prisoner is detained, and the same was neglected or refused to be given : and provided, that if the detainer is on any other color or pretence, there be probable ground shown to the Court or Judge, that the person by or on whose behalf the said application is made, is detained without just cause : but nothing herein shall prevent the issuing of a writ of habeas corpus, at the instance of a person arrested on a charge of any offence, which is bailable by law, in order that he may be discharged on bail in the usual course of law.” The provisos in this Act are specially relied on by the appellant's counsel, his contention being that they constitute conditions precedent to the power of the Judge to issue the writ, and must be negatived or conformed with in all cases before jurisdiction attaches. What may ²⁰⁵ be tbeir true construction or effect in connection with other sections of the Article still in force, and in view of the universal practice under them, need not now be determined. It is plain however, that the utmost effect that can be attributed to them is, that they except as did the Statute of Charles, from those entitled to the benefit of the writ, parties convicted or in execution, and (save for the purpose of being bailed,) parties committed for felony or treason plainly expressed in the warrant, and in other cases prescribe certain formalities in reference to the petition for the writ without the observance of which the application may be refused.

But the precise question we are now dealing with, is whether in an indictment for perjury alleged to have been committed at the inquiry arising before a Judge upon return to a writ of habeas corpus actually executed, it is necessary, in order to show that the false testimony was given in a judicial proceeding, or that the Judge had jurisdiction in the matter, to aver that in the particular case the party brought up under the writ was not embraced by the first of these provisos, or that the application was in