PERJURY-OFFICER MUST HAVE AUTHORITY.

UNITED STATES v. WILCOX.

[4 Blatchf. 391.]

In the United States Circuit Court, New York, 1859.

1. An Indic.ment which Charges Perjury to have been committed on the examination of certain persons charged with crimes or offenses against the United States before a certain commissioner of the United States, but fails to state how or by whom, or for what purpose, or under what statute he was appointed, is bad.

2. An Indictment for Perjury under act of March 3, 1825, must show that the proceed. ing in which false testimony was given was one in which an oath was required. It is not enough to allege that the persons against whom the proceedings were had were charged with a crime against the United States, but the particular charge should be stated, and it must appear what charge was under investigation in the proceeding in which the oath was taken, in order that the court may see that the testimony alleged to have been falsely given was material.

HALL, J. The indictment alleges the perjury to have been committed on 66 an examination of certain persons charged with crimes or offenses against the laws of the United States," before Aurelian Conkling, Esq., "a commissioner of the United States, duly appointed according to law, and having competent power and authority to arrest offenders for any crime or offense against the United States, and to examine the same and to imprison or hold the same to bail, and, in the proceedings and matters before him, in relation to offenses and offenders, as aforesaid, to administer oaths and examine witnesses, and in the matters and proceedings relating to and concerning the offenses and crimes charged against "the persons, etc., named in the indictment; but the indictment does not state how or by whom, or under what statute, or for what purpose, such commissioner was appointed. The case of United States v. Stowell,1 is in point sufficient to show that this is not a sufficient common-law averment of the legal authority and jurisdiction of Commissioner Conkling to administer the oath under which it is alleged the defendant committed the offense charged; and, unless such an averment is rendered unnecessary by the act of Congress of April 30, 1790,2 in reference to the forms of indictment for perjury and subornation of perjury, the indictment is clearly bad for that reason.

I have examined, with some care, the question whether the statute referred to authorizes this form of pleading, and my conclusion is that it does not. The allegation is, that Mr. Conkling was a commissioner of the United States; not of the Circuit Court of the United States,

1 2 Curt. 153.

21 U. S. Stats. at Large, p. 116, 117, secs. 19, 20.

or appointed by the Circuit Court of the United States. Commissioners of the United States, in the ordinary sense of that term, have not the powers alleged to have been possessed by this commissioner. Although the language of the statute referred to is very broad, I do not think it dispenses with the necessity of setting out the true and proper designation of the court, or the name and official title, designation or character of the officer before whom the oath was administered. This, it strikes me, is of the substance of the offense, and not mere matter of form. The setting forth of the commission, or the particular powers and authority of the officer, and the source whence they are derived is not necessary, if he is alleged to hold an office which apparently confers upon him the authorily to administer the oath in the particular case specified. This being done, the general allegation, that he had competent authority to administer the oath, is declared to be sufficient. But there is no distinct and precise allegation that this commissioner had competent authority to administer the particular oath stated, and, therefore, the requirement of the statute has not been complied with; and, certainly the indictment would be bad at common law.

It was also objected, upon the argument of the demurrer, that the indictment does not show that the proceeding before the commissioner was one in which an oath was required, so as to bring the case within the thirteenth section of the act of March 3, 1825,2 on which the indictment is founded. In this respect, also, the indictment is bad. It is not enough to allege that the persons named were charged with a crime or offense against a law of the United States, for that is a conclusion of law, but the particular charge should be stated. The act of Congress, before referred to, does not dispense with this statement.3

It was also objected that it does not appear from the indictment what charge was under investigation before the commissioner, and, that, therefore, the court can not see that the testimony alleged to have been falsely given was material. In this respect, also, the indictment is defective. The indictment was evidently drawn during the disorder and hurry of the circuit, and is in other respects uncertain and defective. The demurrer must be allowed and judgment rendered thereon for the defendant.

1 People v. Phelps, 5 Wend. 9, 19; Queen v. Overton, 4 Ad. & Ell. (N. s.) 83.

2 4 U. S. Stats. at Large, 118.

3 Queen v. Overton, 4 Ad. & Ell. (N. S.)

83.

PERJURY-OFFICER ADMINISTERING OATH MUST HAVE JURISDICTION MATERIAL AVERMENT OF DATE.

STATE V. PHIPPEN.

[62 Iowa, 54.] .

In the Supreme Court of Iowa, October Term, 1883.

1. A Person can not be Convicted of perjury for taking a false oath before one not empowered by law to administer oaths.

2.

Assessor.

A township assessor, in Iowa, is not authorizod to enter upon his duties before the third Monday in January. Held, that a person who before that day falsely swore to an assessment of his property, was not guilty of perjury.

APPEAL from Henry District Court.

The defendant was convicted of the crime of perjury. The facts involved in the question of law ruled by this court appear in the opinion. Wright, Cummings & Wright, and Palmer & Palmer, for appellant. Smith McPherson, Attorney-General, for the State.

BECK, J. I. Numerous questions arising upon objections to the indictment, and upon the instructions given and refused, are discussed by defendant's counsel. We find it necessary to consider but one objection to the validity of the judgment of conviction, which meets us at the threshold of the case, and prevents escape from the reversal of the judgment, of the court below.

The indictment charges defendant with the crime of perjury committed in falsely swearing to the assessment of property for taxation. It alleges that the perjury was committed on the 15th of January, 1880, and that the oath was administered by the assessor of the township wherein the property was assessed. The defendant, by demurrer to the indictment, and by motions to set aside the verdict, and for a new trial, and in arrest of judgment, objected to the indictment on the ground among others, that it shows upon its face that the assessor had no lawful authority to administer the oath at the time the offense is alleged to have been committed. The objection is renewed in this court. In our opinion it should have been sustained by the District Court.

II. Township assessors are elected annually upon the second Tuesday of October of each year, except that, when a president is elected, the election is held upon the Tuesday next after the first Monday of November. The township assessors can not enter upon the duties of their offices in the assessment of property, and they are charged with no others, until the third Monday of January next after the election.2

1 Code, secs. 573, 591.

2 Code, sec. 822.

The indictment alleges that the assessment was made and the oath was administered to defendant on the 15th day of January, which was before the law authorized the assessor to enter upon the discharge of his duty, the third Monday falling the year the assessment was made, upon the 19th day of the month. Upon that day, the assessor had no lawfuj authority to perform any official act. He was not clothed with authority to make assessments or to administer oaths. His acts were those of one having no authority.

III. It can not be claimed that a person may be convicted of perjury for taking a false oath before one not empowered by law to administer oaths. We will not be expected to cite cases upon this point. And it is equally well settled that an indictment for perjury is bad which alleges that the oath was administered by one not clothed with authority to administer it. The indictment in this case, in alleging that the oath was taken and the assessment was made on a day before the assessor was authorized by statute to enter upon the discharge of his duty, shows absence of authority of the assessor to administer the oath.

IV. The allegation of the day upon which the offense was committed is not usually material in indictments. But in an indictment for perjury it is material to show that the oath was lawfully administered. Certainly, if the indictment shows that the oath was not lawfully administered, it is bad, and the defect is fatal. The allegation of the day when the assessment was made and the oath administered, is, in this case, something more than an averment as to the time of the offense. It is an allegation showing absolute want of authority of the assessor to administer the oath and make the assessment. An indictment alleging facts that do not constitute a crime, can not be supported by proof of other facts which are punishable by law. So an indictment for perjury, alleging that the oath was administered by a person not authorized by law so to do, can not be supported by proof that the accused was sworn by one authorized to administer oaths. This is, in effect, the precise case before us. The indictment alleges that defendant was sworn by the assessor at a time when he had no authority to administer oaths. It can not be supported by proof that the oath was subsequently administered, for the simple reason that it charges no indictable offense. The want of authority of the assessor to administer the oath at the time alleged in the indictment takes from the false swearing the quality which renders it punishable by the law. It may, notwithstanding, be a moral perjury, but with that we have nothing to do. We reach the conclusion that the District Court erred in overruling the demurrer to the indictment and the motion to set aside the verdict and in arrest of judgment.

Reversed.

PERJURY-- OFFICER MUST HAVE AUTHORITY.

STEWART V. STATE.

[6 Tex. (App.) 185.]

In the Court of Appeals of Texas, 1879

1. Perjury — Officer Must Have Authority. To constitute perjury, it is essential that the oath or affirmation was administered in the manner prescribed by law, and by some person duly authorized to administer the same in the matter or cause wherein it was taken.

2.

3.

- Indictments for Perjury are Fatally defective, unless they show that the oath or affirmation was administered by a tribunal or person legally authorized to administer it. It is not necessary, however, to aver the means whereby such authority was acquired, as, for instance, the election, qualification, or commission of a justice of the peace.

Coroner The office of coroner, eo nomine, or as a distinct official function, has had no existence in this State since the adoption of the Constitution of 1869. An indictment for perjury, therefore, which alleges that the oath was administered by a "coroner fails to show that it was administered by any lawful authority, and is fatally defective.

The indictment alleges that the perjury was committed before an inquest held on the body of one Andreas Fox. The opinion of the court states the case.

Thomus Ball, Assistant Attorney-General, and W. B. Dunham, for the State.

WHITE, J. In this case there is no statement of facts or bill of exceptions, and in such cases it is the practice in this court simply to determine whether or not the indictment and charge of the court will sustain the judgment of conviction. One of the provisions of our statute with regard to the crime of perjury is, that "the oath or affirmation must be administered in the manner required by law, and by some person duly authorized to administer the same in the matter or cause in which said oath or affirmation is taken." 1

The official character of the person before whom the oath assigned as perjury in this case was taken, is thus described in the indictment: "T. O. Hynes, then and there being and acting as one of the coroners of said county of Washington and said State." Again: "Said Harrison Stewart was duly sworn before said T. O. Hynes, coroner as aforesaid, as a witness before said coroner and said jury of inquest; the said T. O. Hynes, as one of the acting coroners of said county of Washington, said State, then and there having sufficient and competent power and authority to administer the said oath to the said Harrison Stewart in that behalf and the said Harrison Stewart being so duly sworn."