Commonwealth v. McLaughlin , 1877 Mass. LEXIS 159 ( 1877 )

Ames, J.

The perjury set forth in the indictment is that the defendant falsely, &c., swore that he was at a certain inn in Boston with one Frank Hayes, and at that time and place he saw Hayes write the words “ William P. Schell ” in the hotel register, whereas, in truth and in fact, .“neither said Hayes nor said McLaughlin were in said inn together at any time, and said Hayes did not write at any time said words.” The defendant objects that the first assignment of perjury, namely, that in relation to their not having been at the inn together, is not merely ungrammatical, but meaningless, uncertain and bad. Supposing it to be so, we cannot say that it would have the effect to vitiate the indictment. “ When any one distinct assignment of perjury, in an indictment for that offence, is well made, and the defendant is found guilty, he must be sentenced on his conviction, however defective the other assignments may be. This is the settled law.” Commonwealth v. Johns, 6 Gray, 274, 276, and cases there cited. In Commonwealth v. Johns, there were four assignments of perjury in one count, three of which were insufficient, and the conviction was sustained on the fourth. See also Commonwealth v. Morrill, 8 Cush. 571.

If the second assignment is good, it cures the difficulty. With regard to this second assignment, it is in substance an averment that the defendant testified, as of a fact of his own knowledge, and occurring in his sight and presence, that Hayes did write the words in question, whereas in truth and in fact said Hayes never wrote them. The defendant objects that this is an argumentative and inferential, rather than a direct and positive, mode of assigning the perjury. But we do not so consider it. The indictment avers that the defendant testified that he saw the words so written. The secondary averment that they were never so written at all is as direct and positive a charge of false testimony as could well be made. The averment that he also testified'that he wrote his own name in the register, and that Hayes wrote the words “ William P. Schell ” immediately before the defendant’s name, was immaterial, and did not need to be charged as false. The assignment of perjury in this particular matter is well made therefore, and is sufficient to support the verdict.

The exception to the disallowance of the question put to the witness Hayes, on his cross-examination, and of the evidence offered as to what he said about his own property on another occasion, cannot be sustained. They were apparently intended for the purpose of discrediting the witness, but they did not come within any of the recognized modes of reaching that end. For any other purpose they were immaterial.

The averment of the indictment, that the motion for the new trial was heard by the justice of the Superior Court “ at his chambers,” is satisfied by proof that the hearing took place in an apartment appropriated to the use of that court for the transaction of business not requiring the presence of a jury. By the 48th rule of the Superior Court, motions for a new trial may be heard by a judge “at chambers.” We must suppose that the motion in this case was so heard, and not at the private lodgings of the judge. Exceptions overruled.