The prisoner has been tried and convicted by the verdict of a jury of the crime of perjury. The indictment was founded upon an affidavit subscribed by the prisoner, and purporting to have been taken before Jeremiah liieley, a commissioner of deeds in and for the city and county of Albany, on the 24th day of November, 1880, for the purpose of verifying a bill for undertaker’s services and materials, in conformity with section 63, of page 881 of volume 1 of the Revised Statutes (6th edition). Application is now made in his behalf that sentence and judgment may be delayed for a few days, so that a bill of exceptions may be prepared and settled, to the end that -when so settled and signed, a certificate may be given by the judge who presided upon the trial, or by a justice of the supreme court as prescribed by section 29, page 1030, volume 3 of the Revised Statutes (6th edition).
The section to which reference has just been made provides : “ Such bill of exceptions being settled and signed, if ¡the circuit judge who tried the cause, or a justice of the supreme court shall certify on such bill, that, in his opinion, there is probable cause for the same, or so much doubt as to render it expedient to take the judgment of the supreme
The granting of the certificate throws upon the district attorney the labor of removing the case into the supreme court by a writ of certiorari, and then pressing the case to a decision and conclusion ( Vol. 3 of R. S. [6th ed.], p. 1031, sec. 33).
The language of section 29 and the effect of the certificate impress upon us the conviction that the course suggested by the counsel for the prisoner should not be adopted unless a. doubt exists in our own mind as .to the correctness of some ruling made by us during the progress of the trial. A knowledge that we are not infallible, and that in the hurry of atrial a mistake is liable to occur, has led us, during the few hours which a suspension of business in court has given, to re-examine the point upon which the alleged error is predicated.
That the apparent affidavit was true was scarcely pretended upon the trial. Confessedly, the prisoner claimed for services he had never rendered, and for others which, though rendered, insisting that they had not been paid for, he demanded compensation, when, beyond any doubt or cavil, he had been fully paid. The defense was not placed upon the ground of either the truth of the statement which the prisoner had made, or of any mistake honestly committed; but it was insisted and argued in his behalf that, probably with full knowledge that the account, which he had pretended at least was verified by affidavit, was wrong and false in part, he had caused not a real, but a sham affidavit to be made in order to secure thereby the sum justly and honestly due to him from a body which, as was claimed he knew, always cut down charges without regard to justice, and from whose award there was no appeal.
It is claimed that the court erred in the law governing such a defense, and in its definition of a legal and binding oath.
To the extract just given, in order to present with still more sharpness our instructions to the' jury, it should be added that, on the request of the counsel for the prisoner, the court5 expressly charged that if the jury came to the conclusion there was no intent on the part of the prisoner in what he did to swear to his affidavit, then no oath was administered and them verdict should he one of acquittal.
Whatever doubts may have existed in our mind as to the correctness of a legal proposition formulated during a trial without much, if any, opportunity for examination and reflection, such doubts, after further thought, are entirely dissipated, and we now feel confident that we have not erred. Very little need be added to the reasoning given in the charge, and we, therefore, will only refer to a few authorities establishing principles on which the charge rests.
Before doing so, however, it is proper to state that we fully
In disposing of the question we are considering it should be remembered that our statutes require no particular form of an oath. In The People agt. Cook (14 Barb., 259), Mason, P. J. (page 310), said : “ The common law doctrine is that an oath taken in any form to which the affiant assents, and by which he intends to be bound, is, if administered by a competent tribunal, a valid oath (Whart. Am. C. Law, 185; 16 Pick., 156; Roscoe’s Crim. Ev., 130 [ed. 1846]; 6 Carrington & Payne, 571; Cowen & Hill’s Notes, 706, page 494).
“ It was held, however, in the case of The State agt. Whittenhurst (2 Hawks, 458), .that any form pointed out by the witness is binding, and he may be indicted for perjury upon it; and, they add, so he may, though he omit to make known his scruples of conscience and be sworn in the common law form, or any other binding form.
■ “ They add, by submitting to be sworn in the common form, he makes his election, and is estopped to set up his scruples (Oowen & Hill's Notes, 705). It is' also said in the case of The Rex agt. Brodribb, (6 C. <& P., 571) that if the oath administered was intended to be administered as binding, and was so received by the party, it is equally within the statute against perjury, whether the book on which he was sworn was a Testament or not.”
When the same case reached the court of appeals (8 N. Y.,
This same doctrine is also contained in Wharton's Criminal Evidence (8th ed., sec. 354); in State agt. Norris (9 N. H. R., 96), in which {page 102), the court say: “ The term, corporal oath, must be considered as applying to any bodily assent to the oath of a witness; ” in State agt. Whittenhurst (2 Hawks' Rep., 458); and in 2 Broderip & Bingham, 284.
Assuming, then, that the law is, that no particular form is required for the valid administration of an oath, what facts were given to the jury to consider ? 1st. The meeting of the prisoner and the officer for the avowed and declared purpose of verifying the account in the manner prescribed by statute. 2d. A declaration, partly printed and partly written, subscribed by the prisoner, in which he distinctly states he has been “ duly sworn ” and on his oath deposes. 3d. The delivery of the declaration thus subscribed to the commissioner, who reads it, and thereby is fully informed of what the prisoner states to him by written and printed words. 4th. The acceptance by such commissioner of such written and printed statement as a declaration and oath before him, expressed to the party deposing by the officer’s signature to the jurat and its delivery by him, in its completed form, to the prisoner. And 5th. Its acceptance by the prisoner, as a formal and completed .affidavit prescribed by law, proven bv its delivery to the board of supervisors for action thereon.
With these facts properly deducible from the evidence, we are clear that no error was committed in the charge, and that the verdict of the jury was amply justified and required by
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Where a party appears before an officer duly authorized to administer oaths, and hands to such officer a declaration in writing, subscribed by him, in which declaration it is stated in substance that the party subscribing the statement verifies the same by his oath, with the intention thereby of having such officer understand that he, the party, does in fact declare to him, the officer, by written and printed words, that he verifies the same by his oath ; and also with the intend to have the officer subscribe his certificate, that the statement has thus been verified, and the officer believing that the party .intends to declare and does declare on oath, by written and printed words, that he verifies the statement, affixes his name to the jurat; and then after such affixing delivers it to the party, who uses it for the purpose of inducing the official action of some body or court authorized to act thereon, then an oath has been in fact administered, although the words of the oath have not been audibly uttered.
To apply that rule, which perhaps is too general for you to bear in mind in your retirement, the court further charges you, that if O’Reilly delivered the bill and the affidavit to Kieley to have the same certified by Kieley as sworn to before him, intending thereby to declare to said Kieley that by oath he intended to verify, and did verify, the statement subscribed by
For the purpose of making it clear that this is' reasonable and proper, let me say a few words more. It will be conceded that if a party goes before a magistrate and declares to Mm in words, “I swear to the affidavit by me subscribed,” and requests the officer to append to it his certificate that he has taken a proper, valid and binding oath, then such party has taken a valid and binding oath, because he has audibly proclaimed in language his intention so to do. Now that which can be proclaimed in'spoken, uttered words, may be as well and as forcibly proclaimed by one to another by written and printed words. Suppose, for example, that the person about to take an oath was deaf and dumb; he could not speak, he could not hear the spoken words of another, but he could read and write, and read writing and printing—suppose such a
There can be, it seems to me, no doubt in the case we have supposed. Let us then apply the illustration to this. If we are correct in our supposed case then we have demonstrated that spoken words are not necessary to a valid oath, and, therefore, if a party who can read and write and also speak goes to an officer with a declaration subscribed by him, which