People v. Townsend

Welles, Ch. J.

Various legal objections are now taken to a conviction under these circumstances; but we will notice only two of them, as they appear to us decisive of the whole case.

1st. Had the arbitrators power to administer an oath to the defendant; because if they had not, the oath was extra judicial, and legal perjury could not be committed under it. This must depend upon the question whether the arbitration was under the statute or at common law, as they have not such power except in the case provided by the statute (2 R. S. 541; 3 ed. 628; § 1 to 5 inclusive). Under a common law arbitration, arbitrators do not possess such power. Was it then a submission under the statute! We think not. The agreement in writing clearly contemplated that the award should be made before the first day of May 1849. It does not so provide in terms, but it does provide that the party found indebted should pay such indebtedness by that time. This was a material part of the agreement, and effect must be given to it unless it should be found repugnant to some other provision, and effect can not be given to it unless it be implied that the award is to be made before that time. To suppose that such was contemplated by the parties, is doing no violence to any other part of the agreement. It seems, therefore, to follow that the powers of the arbitrators under the written agreement had expired before they entered upon their duties, and some further agreement of the parties would be necessary to enable them to act. It is not material to inquire whether such defect of power could be supplied by a parol agreement made afterwards, because if it could and was actually doné in the present case, the submission would then have been by parol merely and therefore not in pursuance of the statute; and as before remarked in such case, the arbitrators would have no authority to administer an oath, and an oath administered by them would impose no more obligation upon the defendant than if administered by an overseer of highways.

It is also contended that there is a fatal variance between the indictment and the proof) as the indictment counts upon a submission in pursuance of an agreement in writing between the parties, when the proof shows such submission must have been by parol if at all. It may be questionable whether a fair construction of the indictment will warrant this objection of variance; perhaps the clause in question may be referred to the mode of choosing the arbitrators; but still the question would remain whether in order to charge the defendant with perjury upon evidence given under an oath administered by one of the arbitrators, the prosecutor was not bound to show by the indictment that the submission was under the statute. It states that he was sworn by and before the arbitrators, which could not legally be done unless the submission was under the statute.

We think the defendant can not be legally convicted under this indictment.