Commonwealth v. Alden 13 Tyng 388, 14 Mass. 388

Commonwealth versus Simeon Alden.

The oath prescribed for poor prisoners in the statute of 1787, c. 29, need not be administered within the limits of the prison.

The defendant, having been convicted of perjury in taking the poor prisoner’s oath, moved in arrest of judgment, because it was not alleged in the' indictment that the said oath was administered to him in the prison, or within the yard or liberty of the prison; and it did not appear thereby but that he was at large at that time.

[Note. — The certificate of the justices, who administered the oath to the defendant, was that it was so administered at the dwelling-house of Samuel Daggett, and it was so alleged in the indictment.]

Whitman, for the defendant,

contended that the oath must be administered within the walls of the prison, or at most within the limits of the yard ; and unless so administered, it was extrajudicial, and could not legally involve the guilt of perjury. If a prisoner, before being discharged, be beyond those limits, he has committed an escape, and is no longer a prisoner; nor can the oath be lawfully administered to him after such escape. (1)

Morton, (Attorney-General,) for the commonwealth.

The ques tian depends wholly on the statute providing the oath. (2) By the statute, the justices are authorized to appoint the time and place for administering the oath ; * and nothing therein requires it to be done within the prison. It is directed that the oath shall be administered at the time and place appointed. Further, if the party be not admitted to his oath by the justices, the statute directs that he shall be “ remanded back to prison ; ” implying, necessarily, that he had been taken out for the purpose of taking the oath. Nor is the provision without the highest reason to support it. A contagious and mortal disease may prevail within the limits of the prison; and no justices could be expected to put themselves in a situation so hazardous.