Asst. Atty. Gen. Whitney, for defendant in error.
Mr. Justice PECKHAM, after ating the above facts, delivered the opinion of the court.
The only point suggested by counsel for plaintiff in error upon which to obtain a reversal of the judgment is the fact of the variance between the indictment and the proof as to the day when the alleged perjury was committed. We think the decision of the court below was clearly right. The cases cited by counsel for plaintiff in error, in regard to the necessity for specific and accurate proof of the very day upon which the perjury was alleged to have been committed, were those in relation to records, depositions, or affidavits, which were to be identified by the day on which they were made or taken. Under such circumstances, a misdescription of the date of the particular record, deposition, or affidavit has been sometimes held fatal, on the ground, substantially, that it has not been identified as the particular one in which the perjury is alleged to have been committed, because the record or other paper itself bears one date, and the indictment describing it bears another. It is not the same record, and therefore there is variance, which has been held fatal to a conviction.
In this case there was no record which was contradicted by the proof given upon this trial. The trial was described accurately the parties to it, the court in which to took place, the [161 U.S. 500, 502] term and the time at which it was tried; and the only difference between the allegation in the indictment and the proof in the case is that, during this trial, which occupied several days, the plaintiff in error swore, on the 6th of June, instead of on the 7th, as alleged in the indictment, to the matter which was alleged to be false. The date upon which the evidence was given, which was alleged to have been false, appeared by the stenographer's minutes, who took the evidence on the trial, to have been the 6th of June. This is no record, and it is not within the principle upon which the cases relied upon by counsel for plaintiff in error were decided. Such a variance as appears in this case is not material. Rex v. Coppard, 3 Car. & P. 59; Keator v. People, 32 Mich. 484; People v. Hoag, 2 Parker, Cr. R. 1. It will be seen that the time was stated under a videlicet in this indictment, although that fact is probably not very material. The opinion written by the learned judge in denying the motion for a new trial and in arrest of judgment says all that is necessary to be said in this case, and we concur entirely in the conclusion reached by him. 68 Fed. 830.
The judgment must be affirmed.