Cassorla v. State , 251 Ind. 390 ( 1968 )

Arterburn, J.

I cannot agree with the appellant’s contention that a proper oath was not administered in this case before the Alcoholic Beverage Commission, which oath was in the following words:

“Do you most solemnly and sincerely promise and swear and affirm under the penalty for perjury, that the testimony which you will give here today as a witness under oath in this matter, will be, and is, the truth, the whole truth and nothing but the truth, so help you, as a veritable witness of your absolute honesty and integrity.”

Acts 1881 (Spec. Sess.), ch. 38, §272, p. 240, being Burns’ Ind. Stat. Anno. § 2-1711 [1968 Repl.] provides as follows:

“Oath — Mode of administering. — Before testifying, every witness shall be sworn to testify the truth, the whole truth, and nothing but the truth. The mode of administering an oath shall be such as may be most consistent with, and binding upon the conscience of the person to whom the oath may be administered.”

and Acts 1881 (Spec. Sess.), ch. 38, § 857, p. 240, being Burns’ Ind. Stat. Anno. § 2-4701 [1968 Repl.] states in part:

“[Fourth] The word ‘oath’ includes the word ‘affirmation,’ and the phrase ‘to swear’ includes to affirm.”

The swearing that took place conformed either to that of an oath or an affirmation.

I do not believe that an oath has to consist of certain magic words, but it is the substance and intent of what is stated that the law looks upon. In State ex rel. Braley, et al. v. Gay (1894), 59 Minn. 6, 60 N. W. 676, the oath was in the following words: “You swear now to this; that what you have told me is true.” The court held although the oath was not in formal words, the expressions and intent were sufficient to constitute a valid oath.

In 39 Am. «Tur., Oath and Affirmation, § 13 it is stated:

“While an oath is usually taken upon the Gospels or by swearing with uplifted hand, it is well settled that the form in which an oath is administered does not affect its sufficiency for the purpose of basing thereon a charge of perjury, and that any form which appeals to the conscience of the person to whom it is administered and binds him to speak the truth is sufficient. Persons who have peculiar forms which they recognize as obligatory and believers in other than the Christian religion may be sworn in their own manner, or according to the peculiar ceremonies of the religion which they profess and which they declare to be binding. Whenever the attention of the person to be sworn is called to the fact that his statement is not a mere asseveration, but must be sworn to, and, in recognition of this, he is asked to do some corporal act, and does it, this is considered to be a statement under oath. Persons whose conscience will not permit them to swear at all are usually allowed to declare or affirm.”

In my opinion it is only necessary that there must be some unequivocal act by which the affiant consciously takes upon himself the obligation of the oath. See also: State v. Browning (1911), 153 Iowa 37, 133 N. W. 330; State v. Tull (1933), 333 Mo. 152, 62 S. W. 2d 389.

If this was not an oath in the narrow sense of the word, it was an affirmation, and an affirmation does not necessarily have to invoke divine retribution in event of falsity.

I feel the oath in this case met the requirements of the statute as well as common law.

Hunter, J. concurs.