UNITED STATES SUPREME COURT DECISIONS ON-LINE

The defendant was indicted for perjury alleged to have been committed on the 7th of June. The minutes of the stenographer of the testimony, alleged to be false, were read upon the trial, and they said that the testimony alleged to be false was given on the 6th of June, instead of the 7th. The defendant, being convicted, moved for a new trial upon the ground that the variance was fatal, which was refused. Held that such a variance was not material in this case.

Stenographers' minutes of evidence are not records.

The plaintiff in error was indicted in the Circuit Court of the United States, for the Southern District of New York for the crime of perjury, alleged to have been committed upon the trial of an action between the United States and one John Matthews, impleaded with others. The trial of the action in which the perjury was alleged to have been committed was had in the Circuit Court for the Southern District of New York, and Matthews, plaintiff in error, was sworn upon the trial, and the indictment in this case alleges that he committed the perjury set forth in the indictment upon that trial

"before the said judge and jury, to-wit, on the 7th day of June, in the year of our Lord one thousand eight hundred and ninety-four, and within the district aforesaid and within the jurisdiction of this court."

For the purpose of proving the testimony of plaintiff in error, taken upon the original trial in which the perjury was alleged to have been committed, and by stipulation of counsel for the parties in this case, the minutes of the stenographer were read upon the trial, and from those minutes it appeared that the testimony alleged to be false was given by plaintiff in error upon the 6th instead of the 7th of June. The plaintiff in error was convicted. His counsel then made a motion for a new trial and in arrest of judgment, both of which motions were clubjuris

Page 161 U. S. 501

denied. Upon the trial, the objection was raised by counsel for defendant that there was a fatal variance existing between the indictment and the proof as to the time when the perjury was committed, and that question was reserved for the purpose of being heard on the motion for a new trial in case the plaintiff in error was convicted. The motion for a new trial having been made on that ground and denied, the defendant below obtained a writ of error from this Court, and the case is now here for review.