Citation Numbers: 86 N.Y. 154, 10 Abb. N. Cas. 53, 1881 N.Y. LEXIS 193
Judges: Finch
Filed Date: 10/4/1881
Status: Precedential
Modified Date: 10/19/2024
The evidence on behalf of the prisoner tended to prove, that on the occasion of the alleged perjury, no words passed between the officer and the accused, and what was done consisted only of the latter's signature to the jurat, which he thereupon handed to the officer who affixed his own name to the certificate in silence. The force of this evidence was weakened, if not entirely destroyed, by the charge of the court. The learned judge who presided at the trial, with great care and deliberation, laid down a rule for the guidance of the jury, which is now assailed as erroneous. He stated it first in the form of an abstract proposition, and then applied it to the facts of the case on trial. In making such application he said: "If O'Reilly delivered the bill and the affidavit to Kieley to have the same certified to by Kieley as sworn to before him, intending thereby to declare to said Kieley that by oath, he intended to verify and did verify the statement subscribed by him, and the officer,regarding him as so declaring on oath, signs the certificate and jurat for the purpose of evidencing the verification, and then delivers it to the party in that form verified, and the party presents it in that form and shape to the board of supervisors for the purpose of procuring the audit of the bill, then I charge you that the oath has been duly and lawfully administered." The criticism to which this proposition is subjected by the argument at the bar is in substance, that any form of an oath is rendered unnecessary, and the intention to swear is put in the place of the oath actually administered and taken. The criticism is just, precisely so far as it is true. Some form of an oath has always been required, for the double reason that only by some unequivocal form could the sworn be distinguished from the unsworn averment, and the sanctions of religion add their solemn and binding force to the act. (Pandects, xii, 2; 3 Coke's Inst. 165; 1 Phil. on Ev. 15; 1 Starkie *Page 158
on Ev. 23; Lord HARDWICKE, in Omychund v. Barker, 1 Atkyns, 21; Tyler on Oaths, 15; 1 Greenleaf on Ev., §§ 328, 371; 1 Alison's Crim. Law, 474; 3 Wharton's Am. Crim. Law, § 2205; 2 Arch. Crim. Pl., 1723.) While these sanctions have grown elastic, and gradually accommodated themselves to differences of creed, and varieties of belief, so that, as the Christian is sworn upon the Gospels, and invokes the Divine help to the truth of his testimony, the Jew also may be sworn upon the Pentateuch, the Quaker solemnly affirm without invoking the anger or aid of Deity, and the Gentoo kneel before his Brahmin priest with peculiar ceremonies, yet through all changes and under all forms the religious element has not been utterly destroyed. So lately as the case of People, ex rel. Kenyon, v. Sutherland (
It is argued that the charge of the court ignores this necessity, and puts in the place of the act of taking the oath, and its administration by the officer, the intention of the one and the supposition of the other. That portion of the charge which we have quoted, and the statement of the rule made during the *Page 160
trial, seem to us fairly to justify the criticism. The only act referred to is the delivery of the bill and affidavit to the officer. If that is done for the purpose of getting the officer's certificate and with the intention of declaring to him that the affiant does verify the statement he has subscribed, and the officer regards him as so declaring on oath, that, followed by the certificate of the officer and the use of the affidavit, is held to be sufficient. But we think the language cited does not, by itself, fairly represent the proposition presented to the jury, and should be construed in connection with other parts of the charge, which more fully explain its meaning. Thus construed, it rests upon something more than a mere intention, and does not ignore the necessity of an act of swearing and some form of the oath. The reasoning of the learned judge makes his meaning very plain. He relies upon the language of the jurat which the prisoner signed and handed to the officer. That language was as follows: "C. O'Reilly, being duly sworn, saith that the items of the within account are correct," etc.; and the argument is that these written and printed words handed to the officer were as effectual as if the accused had said in spoken words, "I swear that the items of the within account are correct," etc.; in other words, that an audible utterance is not essential, and the oath may be taken by the pen as well as by the tongue. The last proposition may, possibly, be true and not confined to cases of necessity, and yet the inquiry remains, and is the final and determining question in the case, whether the mere delivery of these written words, signed by the accused, to the officer for his certificate, constitutes an oath taken, and is the sufficient equivalent of an express and present declaration that the affiant swears to the truth of his statement. If such be the fact, it is difficult to sustain our decision in Case v. The People (
For these reasons the judgment should be reversed and a new trial granted.
All concur, except FOLGER, Ch. J., absent from argument.
Judgment reversed.
Dalbey Bros. Lumber Co. v. Crispin , 234 Iowa 151 ( 1943 )
Sullivan v. First Nat. Bank of Flatonia , 37 Tex. Civ. App. 228 ( 1904 )
Lowry v. State , 164 Tex. Crim. 178 ( 1956 )
State v. Privitt , 327 Mo. 1194 ( 1931 )
State v. Pray , 64 Nev. 179 ( 1947 )
Spangler v. District Court of Salt Lake County , 104 Utah 584 ( 1943 )
White v. State , 102 Nev. 153 ( 1986 )
State v. Lewis , 85 Wash. 2d 769 ( 1975 )