People v. Emmons

11 Mich. App. 660 (1968) 162 N.W.2d 117

PEOPLE
v.
EMMONS.

Docket No. 4,087.

Michigan Court of Appeals.

Decided June 17, 1968.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald L. Reisig, Prosecuting Attorney, and James R. Ramsey, Assistant Prosecuting Attorney, for the people.

H. James Starr, for defendant on appeal.

T.G. KAVANAGH, J.

On leave granted, Donald Emmons appeals his conviction of the crime of perjury. CL 1948, § 750.423 (Stat Ann 1954 Rev § 28.665). Emmons executed an assumed name certificate pursuant to CLS 1961, § 445.1 (Stat Ann 1964 Rev § 19.821), and in the presence of a notary public he falsely signed the name "Donald Walker" at the bottom of the certificate and acknowledged that he had executed it. The notary testified, at the trial, that before she signed as notary Emmons swore to the truth of the statements made in the certificate. It is this oath, before the notary, upon which the perjury charge was based. The crime of perjury under our statute, supra, is not committed unless the oath is one that is authorized or required by law. People v. Fox (1872), 25 Mich 492, Beecher v. Anderson (1881), 45 Mich 543. That Emmons did in fact swear falsely as to the truth of the certificate is of no significance if the oath was not required or authorized. See People v. Gaige (1872), 26 Mich 29 and Metzger v. Fire Assurance Co. (1894), 102 Mich 334. We hold that Emmons' conviction must be set aside because neither the assumed name statute, supra, nor the form provided pursuant thereto authorizes or requires an oath as to the truth of the certificate.

Reversed.

QUINN, P.J., and CORKIN, J., concurred.