Commonwealth v. Clark

Opinion by

Mr. Justice Green,

The affidavit upon which the indictment in this case was based was matio on the 26th day of June, 1889. The indictment was founded upon the first section of the act of 14th April, 1874, P. L. 58, which provided that every applicant for a warrant to survey any of the vacant lands of this commonwealth shall produce to the surveyor general a particular description of the land applied for with an affidavit of a disinterested witness, made before a justice of the peace of the township or borough, etc., specifying whether the said land be improved or not, and if improved, how long since the said improvement was made,” etc. “ And if at any time thereafter it shall appear that the person or persons deposing as aforesaid, or any of them, shall knowingly have sworn ’ falsely, such person or persons shall suffer all the pains and penalties of perjury.”

The defendant was charged with .having committed perjury in making an affidavit, as a disinterested witness, under the first section of the act of 1874, in which affidavit he declared that a certain tract of land of 201 acres in Tod township, Huntingdon county, for which Harry W. Petriken had made application, was “ unimproved.” This declaration was alleged in the indictment to be false. The act of 1874 was amended by an act passed April 23, 1889, P. L. 46. The amendment was to the third section of the act of 1874, but it contained a proviso in the following words, “provided further that settlement and improvement rights shall only be acquired and recognized as such by an actual entry upon vacant land of the commonwealth, with the manifest intention of making it a place of abode, together with an actual improvement of the land by clearing and tilling the soil for the purpose of gaining support thereby, and also defining the limits of such claim by survey and well marked lines.”

The defendant being indicted for the criminal offence of perjury, under the special terms of a statute, must be clearly shown to be guilty within those very terms. If they do not strictly embrace the clear facts of the ease he cannot be convicted of the crime. We understand it to be conceded that there was no dwelling house, or place of abode, within the lines of the 201 acres for which the application was made. There were clearings, cultivation and fences, but no buildings susceptible of occupancy'as places of abode. Now the act of 1889 provided that settlement and improvement rights could only be acquired by an actual entry upon vacant land “ with the manifest intention of making it a place of abode.” It seems to us that such an intention could only be made “ manifest ” by the erection and occupancy of “a place of abode.” There was no such structure within these lines. This is not a trial of the title to the land and we do not now make, or intend to make, any deliverance on the question whether the improvement right claimed by the prosecutors was sufficient to .include this 201 acres. But for the purposes of this criminal prosecution we are of opinion that the improvement of the 201 aeres, necessary to convict the defendant of perjury in his affidavit, must be an improvement within the requirements of the act of 1889 and must include all the essentials prescribed by that act.

Much stress is placed upon the fact that the defendant testified that he had seen the act of 1889 in the pamphlet laws of that year when he made the affidavit, and that this could not be true because the pamphlet laws for that jmar were not then issued. It is not of the smallest possible consequence whether he had seen a copy of the pamphlet laws then or not. The act of April 23,1889, was the law of the commonwealth from that date, and if the defendant’s affidavit was true, within the meaning of that law, he could not be convicted of perjury in making that affidavit. Mr. Petriken explained in his testimony that he had a copy of the law before him when lie advised with the defendant respecting the meaning of the law and the making of the affidavit, but not a copy of the pamphlet laws. The affidavit on which the indictment was based merely alleged that the land was “unimproved,” and the act of 1874 only requires that the affidavit of the disinterested witness shall specify whether the land applied for “ be improved or not.”

What was “improved” land in Pennsylvania on June 26, 1889, depended upon the description of that kind of land contained in the act of April 23, 1889. Upon all the testimony in the present case it appears to us that this particular piece of 201 acres does not conform to that definition, and therefore the defendant could not be lawfully convicted of perjury for simply declaring in the affidavit in question that it was unimproved.

One of the deficiencies in the improvement title claimed by the prosecutors, as alleged by the defendant, is, that there was no “ defining the limits of such claim by survey and well marked lines,” as is required by the words of the act of 1889. Counsel for the defendant asserts that there was no such proof in the case. Counsel for the prosecutors say there was evidence that “ the land embraced in the Petriken application was cleared, fenced, used and occupied and held by defined boundaries for at least fifty years.” This is not an allegation that the prosecutors or their predecessors in the title ever defined the limits of their claim “ by survey and well marked lines,” as required by the act of 1889, and after having read the whole of the testimony the writer is unable to find any such proof in the ease. In this respect also, therefore, there is an apparent failure, on the part of the commonwealth, to establish the kind of improvement title that is required by the act of 1889 in order to make out the falsity of the defendant’s affidavit.

We are therefore of opinion that the defendant’s fourth point should have been affirmed and the jury directed to acquit the defendant. It is not necessary to notice the other assignments of error.

In addition to these considerations the affidavit of the defendant was made upon the advice of counsel that under the act of 1889 the land was unimproved, and therefore it cannot be said that the affidavit was knowingly false.

Judgment reversed, and it is ordered that the defendant go without day.