I am constrained, by applicable principles of law, to hold the proceeding, in the course of which the alleged perjury was committed, a nullity and, therefore, the oath therein administered of no legal cognizance.
The statute (Act No. 328, § 422, Pub. Acts 1931 [Comp. Laws Supp. 1935, § 17115-422, Stat. Ann. § 28.664]), provides punishment for "Every person who, being lawfully required to depose the truth in any proceeding in a court of justice, shall commit perjury," etc.
Section 17287, 3 Comp. Laws 1929 (Stat. Ann. § 28.1013), relating to indictments for perjury, departs from the common law, in that it makes it unnecessary to allege the authority of the court or other authority before whom the perjury was committed.
This, however, does not dispense with proof of a legal proceeding in which an oath can be lawfully required.
The statute, 3 Comp. Laws 1929, § 17217 (Stat. Ann. § 28.943), under which the prosecuting attorney and the circuit judge assumed to act, provides: *Page 32
"Whenever by reason of the filing of any complaint, which may be upon information and belief, any justice of the peace, police judge or judge of a court of record shall have probable cause to suspect that any crime, offense, misdemeanor or violation of any city ordinance shall have been committed within his jurisdiction, and that any person may be able to give any material evidence respecting such offense, such justice or judge in his discretion may, and upon the application of the prosecuting attorney, * * * shall require such person to attend before him as a witness and answer such questions as such justice or judge may require concerning any violation of law about which he may be questioned."
The record contains a petition by the prosecuting attorney to the circuit judge stating:
"That he is informed and believes that certain crimes and offenses have been committed in Genesee county, Michigan, and that certain persons may be able to give material evidence respecting such crimes and offenses.
"That the list of said witnesses who are supposed to have certain knowledge of the said material facts will be furnished said court and will be subpœnaed to give testimony should the order hereinafter prayed for be made. * * *
"Your petitioner, therefore, prays that an order will be made authorizing and requiring the persons whose names are included in said above mentioned list, which is to be furnished by said petitioner herein, to appear before said court as witnesses and answer such questions as said court may require concerning any violations of the law about which they may be questioned."
As hereinafter pointed out that did not constitute a criminal complaint. *Page 33
Upon filing such petition the court entered an order that:
"All witnesses whose names are known to said prosecuting attorney shall be subpœnaed to attend before me as witnesses at the time (July 15, 1936) and place herein mentioned and answer such questions as required by the judge before whom said proceedings may be held, concerning any violations of law about which said witnesses may be questioned."
Except within authority of the mentioned statute the proceeding was unknown to the law and a nullity. Statutory authority, if not followed, lends no validity to the proceeding.
The statute required, as the first step, the filing of a "complaint," upon which the judicial officer could make a finding of probable cause to suspect the commission of a definite crime.
The term "complaint," as employed in the statute, has a well understood meaning in criminal procedure and serves an essential function. It means an averment or charge of commission of a specified offense. The complaint may state inability to name an offender but it must allege the commission of a specified crime in order to start a judicial investigation as to identity of the violator and in order that he may be apprehended and brought to trial.
The proceeding is purely statutory in origin and scope, and jurisdiction to act at all rests upon a complaint of the commission of an alleged crime.
It is somewhat of a misnomer to term the proceedings a "one man grand jury," for it is special and does not confer the general powers of a grand jury. The statute provides for a special investigation under a complaint of the commission of an alleged *Page 34 crime; it does not authorize a grand inquest, with power of roving inquiry and presentment of offenders generally. When the statutory authority is properly invoked it operates in a specific instance as an aid toward bringing criminal offenders to trial.
In the instant case the "petition" alleged no crime or issue upon which to summon witnesses. It was not a criminal "complaint" within the provisions of the statute, and all action taken and proceedings thereunder were a nullity.
Defendant moved to quash the information, claiming the alleged tribunal was without jurisdiction and — "That there was no crime or issue under investigation at the time and place the testimony referred to in the information was given." The motion was denied. The same grounds were urged at the trial, and for a new trial, and denied.
Was the oath administered in a proceeding in a court of justice (Act No. 328, § 422, Pub. Acts 1931 [Comp. Laws Supp. 1935, § 17115-422, Stat. Ann. § 28.664]), or authorized or required by law (Act No. 328, § 423, Pub. Acts 1931 [Comp. Laws Supp. 1935, § 17115-423, Stat. Ann. § 28.665])? If not, then defendant was not guilty of perjury, even though he deliberately lied.
While it was not necessary for the information to state the authority under which the power was assumed, it was necessary, at the trial, to establish the validity of the special proceeding when issue thereon was presented.
"The jurisdiction of the court or tribunal over the proceedings in which the alleged perjury was committed must be proved." 48 C. J. p. 887.
If there was no jurisdiction there was no perjury.
"In accordance with the rule that the court, tribunal, or officer must have jurisdiction, it is settled that *Page 35 perjury or false swearing cannot be committed in proceedings void for want of jurisdiction." 48 C. J. p. 849.
In 1 Hawkins' Pleas of the Crown (6th Ed.), p. 321, it was said:
"It seemeth clear, that no oath whatsoever taken before persons acting merely in a private capacity, or before those who take upon them to administer oaths of a publick nature, without legal authority for their so doing, or before those who are legally authorized to administer some kinds of oaths, but not those which happen to be taken before them, or even before those who take upon them to administer justice by virtue of an authority seemingly colourable, but in truth unwarranted and merely void, can ever amount to perjuries in the eye of the law, because they are of no manner of force, but are altogether idle."
In People v. Titmus, 102 Mich. 318, defendant was prosecuted for perjury. He was subpœnaed to appear before a justice of the peace to give testimony in an alleged criminal prosecution. He appeared and was examined upon oath, and accused, tried and convicted of perjury. It appeared in that case that no complaint had been made.
The court, in discharging the defendant, quoted the following from People v. Fox, 25 Mich. 492:
" 'There must be an oath authorized by law, an issue or cause to which facts were material, and a false statement regarding such facts upon such issue or in such cause. Such would be the case at the common law, and, if it be claimed that this is statutory perjury, the information is not aided, for, by the statute, it must appear that the oath is one required or authorized by law.' " *Page 36
The petition of the prosecuting attorney was wholly ineffectual to confer jurisdiction for it failed to charge the commission of a specific criminal offense.
The conviction should be reversed and defendant discharged.
SHARPE, POTTER, and NORTH, JJ., concurred with WIEST, C.J.