I agree in the result of Judge MILLER'S opinion, that there should be reversal of conviction and new trial in this case. I cannot, however, concur in all the grounds stated by him; and as the fate of any new trial may be dependent upon some of them, it is proper that the views of the court should be expressed upon these questions.
1st. I think the language of the affidavit, in its proper and natural construction, and according to grammatical rules, is a positive affirmation as to the prisoner's being an officer of the company, and the "above named assets" being the absolute property of the company. Of course, this does not, in the least degree, prevent an acquittal of the prisoner, if the jury find that he did not intend, in fact, to swear positively, but only upon information and belief as to *Page 240 these matters. Hence the observations of the opinion as to harsh consequences from such a construction I do not think just or well founded. The question presented here really is, whether the proof of the making of that affidavit was admissible at all, as within the indictment charging a positive oath. In other words, whether the first part of the affidavit could fairly be construed to be a positive affirmation, and must not necessarily be held to be an affirmation on information and belief, as a question of grammatical construction. That technical question of grammar is raised, therefore, not by the prosecution, but by the prisoner. As already stated, I think it could be so construed, and, indeed, that no other construction is strictly grammatical; and hence, that there was no error in the court below, in not holding that the whole affidavit was necessarily upon information and belief. I disagree with the opinion, therefore, upon this point.
2d. I agree with the opinion that there was error in the admission of evidence of Reed's statements, to the extent they were allowed.
3d. I also agree that the evidence as to the notary's residence was, under the circumstances, improperly excluded. I am not prepared to assent to the doctrine of the opinion that perjury can only be committed before an officer de jure, and that, on the trial of an indictment for that crime, the title of such officer can always be attacked. Nor, indeed, am I prepared now to say that if, in the present case, the commission of the notary from the proper appointing power had been shown, that the prisoner could have raised such a question as non-residence. I am inclined to think that, in such a contingency, the question of residence being often a very nice one, the validity of the appointment could not thus be attacked. But here there was hardly any proof that the party who took the affidavit was a notary at all. The list in the clerk's office proved absolutely nothing; and, indeed, I do not see how it was admissible. The mere fact that he assumed to act as a notary was all the proof really given of *Page 241 his official position. It is doubtful, to my mind, whether this was any proof of even color of office. But if it be conceded that it tended in some degree to show a de facto officer, or to raise a presumption or inference that he had been appointed, I think proof that the person was a non-resident, and therefore incapable of holding that position, was admissible, to rebut any such presumption that he had ever been appointed, and was anything but a mere intruder. Of course, if legal proof, of any sort, of an appointment had been made, there would be no longer any room for presumption upon this point, and nothing of that sort which could be rebutted; but not so, as the case now stands.
All concur with MILLER, J., as to admission of the declarations of Reed. CHURCH, Ch. J., concurs with MILLER, J., as to rejection of evidence of non-residence of notary.
FOLGER, J., concurs with HAND, J., as to notary. RAPALLO, J., concurs with HAND, J., as to construction of affidavit, and with EARL, J., as to notary.
ANDREWS, J., concurs with MILLER, J., as to construction of affidavit.
Judgment reversed. *Page 242