The majority opinion rests upon what I conceive to be a faulty emphasis placed upon the wording of the statute defining perjury in the first degree and upon a failure to recognize the alternative inhibitions contained in the same section.
The defendant was charged, in the amended information, with the crime of first degree perjury. It stands admitted, by the pleadings, as the majority opinion freely concedes, that the accused voluntarily appeared before a notary public to testify in an action pending before the superior court; that he was regularly sworn according to law; that he then and there didtestify in answer to questions propounded by counsel; and that his testimony upon material matters was false, in directviolation of the oath which he had voluntarily taken.
In my opinion, these facts bring the case squarely within so much of Rem. Rev. Stat., § 2351 [P.C. § 9032], as, upon proper analysis, reads as follows:
"Every person who, in any action, proceeding, hearing, . . . in which an oath may lawfully be administered, shall swear that he will testify . . . truly, . . . and who, in such action, proceeding, hearing, . . . shall state . . . as true any material matter which he knows to be false, shall be guilty of perjury in the first degree . . ."
Applying the terms of the statute to the admitted facts in the case, we mark these facts: The defendant appeared before a notary public in an action pending *Page 592 in the superior court; an oath was lawfully administered to him; he swore that he would testify truly; and he then and there stated as true material matters which he knew to be false.
The fact that the testimony was given before a notary public, and not in open court, is immaterial; for, as we have declared, Rem. Rev. Stat., § 2351, must be held to apply in all cases when the alleged false oath is taken and testimony is given in or inaid of a judicial proceeding. State v. Wilson, 83 Wash. 419,422, 145 P. 455; State v. Howard, 91 Wash. 481, 483,158 P. 104.
The formality of administering an oath is not left in suspense, nor is its sanctity to be determined by the whim or caprice of the individual; for by Rem. Rev. Stat., § 1265, the witness is required to hold up his hand and solemnly swear that the evidence that he shall give in the issue pending shall be the truth, the whole truth, and nothing but the truth, concluding with an invocation to Deity.
Every element necessary to constitute the crime of perjury in the first degree, according to the provisions of Rem. Rev. Stat., § 2351, as above quoted, is presented by the admitted facts here. The offense was complete when the defendant, having taken the oath required by law, knowingly testified falsely upon a material matter.
"But the crime [perjury in the first degree], if committed, is completed when a person takes an oath and wilfully testifies as the truth that which he knows to be false." State v. Wilson,83 Wash. 419, 425, 145 P. 455.
An escape from the consequences of his acts is afforded the defendant through what I think is an oversight or disregard by the majority of a positive inhibition of the statute and an improper emphasis placed *Page 593 upon an alternative feature thereof. The majority opinion fails to recognize the fact that defendant, after taking the oath,testified falsely, contrary to the inhibition of the statute, and views the matter entirely from the standpoint of a deposition which, by reason of the provisions of Rem. Rev. Stat., § 2356, was incomplete.
It may be conceded that, under the terms of Rem. Rev. Stat., § 2356, the making of a deposition, certificate, or affidavit is not complete until the instrument is subscribed and sworn to or affirmed by the defendant with the intent that it be uttered or published as true. It may also be conceded that Rem. Rev. Stat., § 2351, does not penalize the making of a false deposition, certificate, or affidavit unless the same be completed as provided in Rem. Rev. Stat., § 2356. But Rem. Rev. Stat., § 2351, is not limited to the making of false depositions, certificates, and affidavits, nor does it regard testimony by deposition as of less sanctity than testimony in open court.
The statute is designed to penalize and prevent the wilful making of false statements under oath, in actions pending before the court, as well as the subsequent subscription to false statements previously made in oral testimony or in written certificates or affidavits. Subsequent subscription may indeed magnify the crime of giving false testimony or it may constitute a distinct offense under the statute, but lack of subscription or failure to subscribe to what was falsely stated under oath in a pending action does not secure immunity from the penalty of the statute. The intentional giving of false testimony in an action before the court is a distinct and complete offense, regardless of subsequent confirmation by subscription.
The majority opinion says that, with regard to depositions, the statute affords no more than a reasonable protection to the witness by giving him an opportunity *Page 594 to read that which has been written down as his testimony, before he shall be liable to the pains and penalties of the statute. This, I concede, applies to the witness who unintentionally may have made an incorrect statement in his deposition. In such instances, his intent is to be determined by the statement which he subscribes. But certainly the immunity does not apply to the witness who deliberately and intentionally, as was the case here,testifies falsely upon a material issue in a pending action.
The distinction is clear and proper. In the former instance, the inaccuracies of his statement are revealed to the witness upon a reading of the deposition, and he may withhold his signature until the truth as he intends it is made to appear; he thereby aids the course of justice. But in the latter instance, he has deliberately testified to that which he then knew to be false and has thereby wilfully obstructed the course of justice. The situation here is not one of initially making an inaccurate or incorrect statement which a reading of the deposition would reveal, but is an instance of deliberately and intentionally giving false testimony in a solemn proceeding.
With one exception, the cases cited in the majority opinion have no bearing upon this case, for they either relate to affidavits, which, under Rem. Rev. Stat., § 2356, concededly require subscription, or else they grew out of statutes wholly different from that now under consideration. The one exception is the case of State v. Wilson, 83 Wash. 419, 145 P. 455, from which quotation has already been made above. That case, I think, is clearly an authority against the majority opinion.
Regardless of the fact that the defendant escaped the penalty of making a false deposition in that he did not subscribe it, he nonetheless, according to the admitted *Page 595 facts in the case, committed perjury in the first degree when, having taken a solemn oath to tell the truth, he knowingly and wilfully testified falsely upon a material matter in an action pending before the court.
I think that the order of dismissal should be reversed.
ROBINSON, J., concurs with STEINERT, C.J.