Diamond Oil Well Drilling Co. v. Purser

McGILL, Justice.

I concur in the disposition of this case but not in the statement in the opinion, that the langauge employed by the plaintiff in his controverting plea is “apt” language to incorporate the petition in the controverting plea. It may be sufficient, but in my opinion it is somewhat indefinite and I have grave doubt whether it is sufficient to warrant a conviction of the affiant for false swearing or perjury should the facts alleged in the petition be untrue. It will be noted that the language does not specifically state in what the petition is “incorporated”. It may be, and I agree that the only reasonable inference is that it is incorporated in the controverting affidavit. But I have always supposed that a man can not be convicted of a crime on inference. This seems to be the test of the sufficiency of the verification, and if the affiant couíd be convicted if the facts alleged in the petition in this case are untrue, it is the one exception I know of. ' However, I do not feel strongly enough on the matter to warrant a dissent, and therefore concur.