Executors and Administrators. Designation by Will of Attorney for Executor

1915 Virginia law review  
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more » ... out Early Journal Content at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact support@jstor.org. VIRGINIA LAW REVIEW VIRGINIA LAW REVIEW that he did not commit the acts of intercourse charged and was found not guilty. Later he was indicted for perjury on the ground that this testimony was false. Held, he may not plead autrefois acquit. Murff v. State (Tex.), 172 S. W. 238. The first question in this class of cases is whether the rule as to former jeopardy bars the prosecution for perjury. Clearly it does not because the prosecutions are for different offenses, one being for rape and the other for perjury for false swearing in the rape case. See Allen v. United States, 194 Fed. 664, 39 L. R. A. (N. S.) 385. The question involved in the principal case is whether the accused can claim res judicata. The doctrine of ires judicata must be confined to the facts absolutely essential to the determination of the guilt or innocence of the accused, or else no indictment for perjury could be sustained because perjury lies for false swearing upon any material fact. People v. Dowdall, 124 Mich. 166, 82 N. W. 810. In the principal case since the fact of intercourse, if established, alone would not have convicted the accused, the perjury was relative to facts, the determination of which did not necessarily cause the acquittal of the accused. For this reason the doctrine that the accused can be held for perjury in such a case seems correct both on principle and on authority. 'State v. Smith (Minn.), 137 N. W. 295; People v. Albers, 137 Mich. 678, 100 N. W. 908; State v. Bevill, 79 Kan. 524, 100 Pac. 476, 17 Ann. Cas. 753; State v. Williams, 60 Kan. 837, 58 Pac. 476. But where the acquittal of the accused of the first offense is sustained by the facts upon which the perjury is based, the issues in the two cases being identical, the question is res judicata and the prosecution for perjury is barred. Cooper v. Commonwealth, 106 Ky. 909, 51 S. W. 789; Coffey v. United States, 116 U. S. 436. In some cases the rule, based on grounds of public policy, is laid down, that even though the issues in the two cases are identical and the facts upon which the perjury is based were necessarily determined in the acquittal on the first charge, the doctrine of res judicata will not be applied in criminal trials and the indictment for perjury will be sustained. State v. Vandemark, 77 Conn. 201, 58 AtI. 715, 1 Ann. Cas. 161. EXECUTORS AND ADMINISTRATORS-DESIGNATION BY WILL OF ATTORNEY FOR EXEcUTOR.-A testator by his will directed that his son should be employed
doi:10.2307/1063775 fatcat:oao66tsb7ngr7ebxajijsu6t5a