The appellee was indicted in the Circuit Court for Frederick County for perjury alleged to have been committed by making a false oath in certain proceedings of the Orphans' Court of that county. He filed a plea in abatement, to the indictment, alleging that the grand jury which had indicted him was not legally constituted because one of its members who is named in the plea was an atheist and infidel who did not believe in the existence of God nor in the truths of the Holy Scriptures.
The State demurred to the plea and the Court sustained the demurrer. The traverser then moved to quash the indictment and the Court overruled his motion. He then demurred *Page 537 to the indictment and to each count of it and the Court sustained his demurrer and gave judgment in his favor and the State appealed. Under Art. 5, § 80 of the Code, as construed inAvirett's case, 76 Md. 515, and Floto's case, 81 Md. 602, the whole record including both demurrers is brought up by the appeal.
We are of opinion that the traverser's plea in abatement was a bad one because it presented a false issue by averring that the grand juror in question did not believe in the truths of the Holy Scriptures. No such belief is required as a qualification for a juror and therefore to uphold such a plea might exclude a juror who was competent to serve as such. The demurrer to this plea was therefore properly sustained. Art. 36 of the Declaration of Rights provides that no one otherwise competent shall be deemed incompetent as a witness or juror on account of his religious belief "provided he belies in the existence of God and that under His dispensation such person will be held morally accountable for his acts and will be rewarded or punished therefor in this world or the world to come," but says nothing about a belief in the truths of the Holy Scriptures.
If the plea had simply set up that the grand juror in question was not a qualified juror because he did not believe in the existence of God and that under His dispensation he would be held morally accountable for his acts and be rewarded or punished therefor in this world or the world to come it would have been a good plea and the traverser would have been entitled to have the issue raised thereby tried. Our attention has not been called to any previous construction by this Court of this section of the Declaration of Rights as applied to the competency of a juror. The case of the insensibility of a witness to the obligation of an oath by reason of his want of belief in God and His dispensation of rewards and punishments was considered in Armd v. Amling, 53 Md. 192, and was again referred to in JUDGE BRYAN'S opinion in DuPuy v. Terminal Co., 82 Md. 444, but that is not the precise question before us now. We think however, that the language *Page 538 used in sec. 36 is plain and that its intention clearly was to afford to the community, in so far as they were affected by the exercise of the important powers conferred upon grand juries, the protection as to each juror of the sense of restraint and obligation arising from the belief that he would be held accountable for all of his transactions at the bar of Divine Justice. The provision therefor contained in the section that no one should be deemed incompetent to serve as a juror by reason of his religious belief provided he had the belief therein mentioned in the existence of God and His dispensation of rewards and punishments, in order to be given its proper and legitimate operation, must be construed to assert that no one shall be deemed competent as a juror who does not have that belief.
If any of the grand jurors who found the present indictment against the appellee were incompetent it is clearly null and void. Clare v. State, 30 Md. 163; State v. Vincent,91 Md. 709. It is equally clear that it would have been proper for the traverser to have raised the issue of the competency of the grand juror by an appropriate plea in abatement. Clare v.State, supra; Avirett v. State, 76 Md. 537.
The second demurrer filed by the traverser raised the question whether the indictment contained all of the requisite averments to constitute the crime of perjury. The essential features of perjury at common law are the willful making when under oath in a judicial proceeding or Court of justice of a false statement material to the issue or point of inquiry. The offense consists in the swearing falsely and corruptly and not through mistake. 2Bishop's New Criminal Procedure, sec. 1015; 2 Wharton's Am.Crim. Law, sec. 1244; Hochheimer's Crim. Law, sec. 404. By sec. 356 of Art. 7 of the Code false swearing in an affidavit required by law to be taken is also made perjury.
The oath in such cases must have been taken in the presence of an officer or tribunal authorized to administer it, but the competency of the person who reads the words of the oath to the witness and does the ministerial part of its administration *Page 539 is not material. He may be a clerk or his deputy of other person.Masterson v. State, 144 Ind. 240; Walker v. State,107 Ala. 5; Oaks v. Rodgers, 48 Cal. 197; Stephens v. State,31 Tenn. 157; 21 Am. Eng. Ency., 2 ed., p. 749.
The first count of the indictment alleges the pendency before the Orphans' Court of Frederick County of a proceeding upon the petition and application of the traverser and others for letters of administration on the personal estate of William E. Mercer, deceased, and that the said Court had competent jurisdiction to hear and decide the matter of said proceeding and to administer the law therein, and that at the time of the filing of the petition the traverser took an oath and affidavit required by law "before the said Orphans' Court of Frederick County, State of Maryland, in due form of law," that the matters and things stated in the petition were true to the best of his knowledge, information and belief "said oath having been then and there administered by one Edward A. Toms, who was then and there a duly appointed, qualified, and acting deputy Register of Wills," having power by law to administer an oath. It is further averred that being so sworn in the said proceeding the traverser in a matter material thereto and during the hearing thereof, knowingly and falsely declared and made oath that diligent search had been made among the books, papers, c., of the decedent and that no paper purporting to be his last will could be found and that to the best of the traverser's knowledge, information and belief the decedent had died intestate and that the traverser well knew at the time of making said oath that the decedent did leave a paper purporting to be a last will and did not die intestate.
The second count differs from the first in alleging that the traverser and others appeared personally before the Orphans' Court and requested that letters of administration on the personal estate of the decedent be granted to them, and that he was required by law to prove for that purpose the intestacy of the decedent to the satisfaction of that Court and that in the matter and proceeding of the granting of the letters, of which the Court had jurisdiction, it became material to ascertain *Page 540 whether the decedent died intestate or left any papers purporting to be his last will, and that the traverser, having been duly sworn (in the manner stated in the first count) knowingly and falsely made the statement, already mentioned, as to the diligent but fruitless search for any paper purporting to be his last will and testament and as to his death intestate.
Both of these two counts are sufficiant to charge perjury at common law. In each one of them the oath of the traverser is alleged to have been taken before the Orphans' Court in due form of law in an application for letters of administration upon the personal estate of a deceased person who was alleged to have died intestate. Such an application is certainly a proceeding in the course of the administration of justice and it is one over which the Orphans' Court has full jurisdiction under Art. 93, § 234 of the Code. A statement made under oath in that proceeding touching the intestacy of the decedent is in the highest sense material to the point of inquiry as letters of administration can only be granted in cases of intestacy.
The allegation that the oath was taken "in due form of law" "before" the Orphans' Court was sufficient although accompanied by the statement that it was administered by the deputy Register of Wills. 2 Wharton's Am. Crim. Law, sec. 1257, 1287, 10 ed. Not only had the Orphans' Court, when acting as a judicial tribunal in such a proceeding as the one now under discussion, power to administer an oath, but Art. 93, § 16 of the Code, makes it incumbent upon the person applying for administration to prove the dying intestate to the satisfaction of the Court, unless the same be notorious, and expressly authorizes the Court to examine the applicant under oath as to whether the party dying left any will.
The corrupt intent of the traverser in making the alleged false statements when under oath is plainly and distinctly charged in both counts of the indictment. As it is distinctly alleged that the traverser took the oath in due form of law before the Orphans' Court in the proceeding on the application for administration, the further allegation that the deputy *Page 541 register who administered the oath had authority by law to do so may either be treated as subordinate to or in amplification of the statement as to its due administration or may be disregarded as surplusage.
For the error of the Court below in its rulings upon the traverser's demurrer to the indictment the judgment must be reversed and the case remanded, for a new trial.
Judgment reversed with costs and case remanded.
(Decided June 22d 1905.)