(dissenting) — The majority opinion ignores the plain requirements of our statutes, creating an oath where there was none and then upholding a perjury conviction for violating it. The respondent was convicted under a statute which makes it a crime to “swear falsely.” RCW 9.72.030. To “swear,” one must state something “under oath,” and an “oath,” to be legally recognizable, must be taken in a “mode authorized by law . . .” RCW 9.72.040.
The sole legally authorized method for taking an oath in applications for replacements for lost license plates is established by RCW 46.16.270, which requires that statements in such applications
shall be subscribed and sworn to before a notary public or other person authorized to certify to statements upon vehicle license applications.
(Italics mine.) The fact that respondent did not follow this procedure compels the conclusion that he took nothing that can be legally construed as an oath. Certainly, the law could have provided that signing the application outside the presence of the notary was equivalent to taking an oath (cf. RCW 42.24.100), but it did not. Respondent may have sworn in fact, but he could not swear in the eyes of the law without some undertaking in the form it establishes.
As the majority points out, irregularity in the legal form of oath-taking is not a defense to a charge of perjury. RCW *7739.72.050. But a total failure to take an oath is. State v. Heyes, 44 Wn.2d 579, 269 P.2d 577 (1954). In State v. Douglas, 71 Wn.2d 303, 428 P.2d 535 (1967), we stretched this statutory flexibility to its limit in holding that signing a document purporting to be made under oath in the presence of an officer competent to administer an oath was “the equivalent” of legal swearing. Here there was nothing that could similarly substitute for the acts required by law. Respondent was not irregularly administered an oath, he was administered no oath at all — no one was there who could administer one to him. Thus he did not sign an “affidavit,” — a “written oath” (State v. Howard, 91 Wash. 481, 486, 158 P. 104 (1916)) — even though the document he did sign purported to be one. Williams v. Pierce County Bd. of Comm’rs, 267 F.2d 866 (9th Cir. 1959).
Our law has properly eliminated unnecessary rigidity in the oath-taking element of the crime of perjury, but it has not eliminated the element altogether. RCW 9.72.050 and statutes like it
appl[y] only to cases where some oath was administered, but administered in a manner defective in form. It does not create the obligation of an oath where it has not been consciously assumed in some form; it cannot cure that which never had life enough to be sick.
People ex rel. Greene v. Swasey, 122 Misc. 388, 391, 203 N.Y.S. 22 (1924). It does not empower courts to ignore the requirements of the law and create an oath and crime where there was none.
I would follow the courts of Texas (the only jurisdiction in which this precise issue has been addressed) and hold that, where statutes require it, the presence of a legally empowered official is necessary to the creation of a binding oath. Lowry v. State, 297 S.W.2d 848 (Tex. Crim. App. 1956); Sullivan v. First Nat’l Bank, 37 Tex. Civ. App. 228, 83 S.W. 421 (1904). I would therefore affirm the decision of *774the Court of Appeals reversing respondent’s perjury conviction. I dissent.
Rosellini, Hamilton, and Horowitz, JJ., concur with Utter, J.Petition for rehearing denied October 23,1975.