SUPREME COURT OF THE CANAL ZONE.

which constitute the main evidence upon which Kerr, the defendant-appellant, Nv as prosecuted for perjury in the case now under consideration.
The first of these documents is a draft drawn by M. J. Averbeck on J. L. Kerr for $150, bearing date of August 9, 1910, accepted by Burgoon on August 26, 1910, payable August 29, 1910, and paid by Kerr's wife October 12, 1910.
The second document is a receipt reading as follows:
October 27, 1910. Received of J. L. Kerr on account $500. Thanks.
(Signed) M. J. AVERBECK.
These papers were brought to the attention of Burgoon and the prosecution of the case now on appeal was initiated.
The information contains all necessary allegations with reference to the alleged perjury of the defendant-appellant which is in substance that when under oath as a witness in the case of Averbeck vs. Reed, hereinbefore referred to, the defendant contrary to said oath had stated that "no payments had been made upon the account of the said Averbeck since July 25, 1910, whereas in truth and fact, as the said J. L. Kerr then and there well knew, two payments had been made thereupon subsequent to July 25, 1910, to wit: One hundred and fifty dollars on the 12th day of October, 1910, and $500 on the 27th day of October, 1910."
Upon the trial of the defendant for the alleged perjury the necessary facts of his oath and testimony as a witness in the Averbeck case were proved and the two documents above referred to were introduced in evidence. Burgoon testified that during the defendant-appellant's absence in the United States he, Burgoon, accepted the draft already referred to, in the name of J. L. Kerr. Burgoon also testified that there was only one open account existing between Averbeck and Kerr, and that that was the account referred to in the action of Averbeck vs. Reed.
The defendant-appellant testified in his own defense that sometime before the partnership action between Burgoon and himself was begun he was aware there would be trouble between himself and Burgoon, and that while in New York, about September 1, 1910, on the advice of counsel, he made certain arrangements with Averbeck by which no money was to be paid by Kerr as a credit or payment upon the open account afterwards sued upon by Averbeck, but that all sums of money paid by him to Averbeck should stand with the latter as a "bond" to guarantee the payment of the open account.

264