The first ground on which a new trial is asked, is a supposed misdirection of the court to the jury. If the jury have been misled by an erroneous direction of the court, no doubt a new trial should be granted. The counsel for the prisoner has mistaken the charge which was given, to the jury. It is laid down as a rule in favorem vitae, that it one of the jury doubts the prisoner’s guilt, the whole are bound to acquit. In observing upon this, it was stated to the jury that there was such a rule of law in the books, but it seemed to be applied to capital cases only. “That as the verdict must be the deliberate judgment of each one of the jury, upon the case submitted, each one should be satisfied, in his own mind, of its correctness; that no one juror was bound to give up his own conviction of truth and adopt the opinions of others; they were bound to deliberate, to examine, and if possible to agree on a verdict; but no one was bound to pronounce the prisoner guilty or not guilty, unless in his own mind he was satisfied that he was so — that as to the rule of law so much insisted on by counsel, if it was to be understood as requiring eleven jurors to agree to a verdict of acquittal, because one juror doubted, and could not agree to a verdict of condemnation, it ivas to absurd to be recognized as law in any case. That in deliberating upon the case *265submitted to them, the prisoner was to be presumed innocent of the offence charged against him, until the contrary was made evident to them by facts proven ; that criminal causes were not to be decided as civil causes were, by the mere preponderance of evidence: but that the evidence should be so clear and conclusive, as to leave no reasonable doubt of the truth of the charge, and so full as to be wholly irreconcileable with the prisoner’s innocence on any reasonable construction which could be given to it — or they should not return a verdict against him.” We are not able to perceive any error in this. As to the other point, we are satisfied that the evidence supported the indictment.— New trial refused. It was then moved in arrest of judgment: 1st. Because there is repugnancy in the indictment, in this: the caption shews the indictment to have been found on the 24th March, 1818, and the offence alledged to have been committed on a subsequent day, viz. 26th March, 1818. 2d. Because a material allegation in the indictment, of what the prisoner swore on oath to wit, that he told them he would return him to the grand jury, is not denied in the indictment, by any averment, to be true. 3d. Because there is no record upon which the indictment can be supported, either in its finding, its return into court, or of its existence upon the records of this court, at the commencement of this term. 4th. Because if the endorsement on the back of the indictment be sufficient to support the finding at March term 1818, it cannot authorise the court in ordering or directing an entry of its return into court, or of its continuance at said March term without the consent of the prisoner. 5th. That the indictment does not contain any sufficient matter to support the charge of perjury against the prisoner, and that, according to the law of the land, judgment cannot be rendered against him.
The counsel for the state, moved that an entry be ordered to be made now, as of the fourth day of the last term, (27th March 1818) upon the journals, of the return of the bill of indictment against the prisoner, and of its continuance unto this term. Warner, G-oodenow and Wright, for the prisoner. Beebe and Johnson, for the state.
President. — We will first consider the objections to the indictment, because, if they are well taken, it will be unnecessary to decide the other points made in the case. Mauckiman was indicted for an assault and battery upon Smith; he put in the plea of guilty to the indictment; and, upon the examination into the circumstances of the case by the court, he urged *266^ ^ ^ ““““ W“J-±UU> an¿ satisfied him for the injury. It was of importance in mitigation of the fine, that he had settled with Smith, to ascertain this fact, because by the usual practice of the court, when the party injured is compensated for such injury, the submission of the party, and the fact of a compensation having been made, are taken into consideration as circumstances in mitigation of the fine to be assessed. This iudictment states, that Smith was sworn as a witness on such examination, and that he testified: 1st, that he did not agree to the settlement with Mauckaman : 2d, that he expressed his dissatisfaction with it at the time: and 3d, that he told them he would return him to the grand jury. The perjury is assigned in the 1st and 2d points of Smith’s evidence; and it is now urged, that, inasmuch as the person upon whom an assault and battery has been committed, has no power to settle and discharge the criminal prosecution, Smith might with truth deny that he had made any such settlement; that a compromise, illegal and void in itself, cannot be set up to contradict his testimony; that his testimony was strictly and technically true, although it might be apparently false; so that, under these circumstances, no perjury has been committed. The legal effect of such settlement, is no further in question, than as it may go to the materiality of the matters sworn to; whether a settlement between the parties would go to discharge the criminal prosecution altogether, or only in mitigation of the penalty inflicted on the aggressor, does not seem very important to inquire, when it is considered that it was a fact which would materially influence the decision of the court upon the matter then before them, and that such influence would not be modified by any consideration of the legal effect of such settlement, otherwise than as between the parties. Satisfaction to the party injured, would bar a suit for damages; it could not, therefore, be either void or illegal. The question, then, will be, whether, by this indictment, Smith is charged with swearing falsely as to an agreement with and satisfaction received of Mauckaman. It charged, that he was satisfied, and so expressed himself, and that he swore that he neither agreed or was satisfied with Mauckaman. Here is a sufficient charge of perjury; and as it is not necessary to assign perjury in every part of the matter sworn to, the indictment appears to be sufficient in substance. The residue of the motion in arrest of judgment, and the motion to amend, may be considered together. The March term of this court commenced upon the 24th day of the month, and continued to and was adjourned upon the 28th. On the 26th, the *267court proceeded to an hearing of the case of the state against Mauckaman, when Smith was sworn and examined as a witness. It being apparent to the court that Smith had sworn falsely, he was ordered into custody, and afterwards recognized to appear at this (the next) term, to answer to a charge of perjury. So far appears on the journals of the court. On file is an indictment, which appears to have beep found at the March term. At this term, Smith was surrendered by his bail, pleaded to the indictment, has been tried and convicted; there is no entry on the journals that the grand jury returned this bill of indictment into court, or of the continuance of the cause, but it is within the knowledge of the court, that the grand jury came into court on the 27th day of March, and returned this bill of indictment endorsed as it now appears.
After the prisoner has been convicted, by the verdict of an impartial jury, on very full and satisfactory evidence, upon an indictment sufficient in form and substance to warrant the court in pronouncing the judgment of the law against him, he claims to be discharged: 1st, because, by the caption of the indictment, and by a fiction of law, that the whole term is but one day, it may be inferred that the indictment was found beiore the offence was committed; 2d, because the clerk has omitted to make an entry on the journals, of the return of the indictment into court by the grand jury; and 3d, because a continuauce has not been entered. We know well that this indictment was not found upon the 24th day of March, but upon the 27th; that it was regularly returned into court by the grand jury; and that the cause was continued to this term; but, notwithstanding our knowledge of these facts, we are urged, with no little zeal, to act and decide, as though we were not merely ignorant concerning them, but knew the contrary of each to be true. There does not seem to be any reason for such course of proceeding, nor is any authority adduced; and, in all cases where a court are asked to make an irrational and absurd decision, an uniform course and concurrence of authorities should appear to contravene their own judgment of right and wrong, or I think they should follow that as the safer guide. In the case of the King vs. Darley, 4th East. 174, which was an indictment removed into the court of the King’s Bench, by certiorari, after a verdict of guilty in the court below, “ Gurney, for the prosecutor, moved upon an affidavit of the clerk of the peace of the county of Sussex, stating that the indictment, which appeared by the caption returned to have been found at *268^he Midsummer general quarter sessions of the peace, was DOt found then, but at the Michaelmas session following, for a rule calling upon the defendant to shew oauge w}jy} upon reading the affidavit of W. E. and a parchment writing thereto annexed, and the minutes of the court before which the indictment was found, now produced and shewn to this court, the return to the writ of certiorari issued hy this court at the instance of the defendant should not be amended, by inserting in the return of the caption the time when, the general quarter sessions ol the peace at which the said indictment was found, was holden, and the names of the justices by whom the said sessions was holden, and the names of the jurors by whom the same was found, according to the truth of the fact. And why the entry roll in the treasury, and also the record of nisi prim, should not be amended as to the caption of the indictment, by making the same agree with the caption when so amended. And on a subsequent day of the term, Erskine, for the defendant, admitting that he could not oppose the amendment prayed, the rule was made absolute.” So far, then, as precedents are examined they fully authorise the amendments prayed for. Such amendments are made, that the truth may appear, not for the purpose of exhibiting a falsehood. The entry must be made on the journals now, as of the fourth day of the last term, the continuance entered, and the caption amended by stating the day it was found. Motion in arrest overruled.