dissenting:
I find my self unable to assent to that portion of the majority opinion reversing the conviction of perjury. I attach a greater evidentiary value to a jurat regular in form and content than does the majority; to me, it is and remains prima facie evidence of verity until a jury is satisfied that it is not entitled to such credit.
Does a notary’s lack of recollection of the circumstances of the execution of a jurat strip it of the quality and quantity necessary to make it prima facie evidence that the signatory took an oath? This question pinpoints the problem with which the court here had to deal. The majority said it does; I would hold to the contrary.
In simplest terms. I would regard a jurat, conventional in all respects, sufficient proof in itself that the. person whose name is signed took the necessary oath. I believe that sound precedent supports this view.
Perhaps the earliest decision on the question was that of King v. Morris, 1 Leach 51, 168 Eng.Rep. 128. The defendant was accused of the crime of perjury, and in *328the course of the opinion the court stated that “a jurat attested by the proper person before whom the oath ought to be taken, is sufficient proof of its being actually sworn by the person whose name is signed . . .”
The defendant was indicted for perjury in Commonwealth v. Warden, 11 Metc. (Mass.) 406. He had filed an answer in a case. The answer was supported by an oath. The officer who had administered the oath was not available as a witness at the trial for perjury, having died. It was the holding of the court that “the certificate of the magistrate before whom the oath was taken, his signature thereto being proved, was competent and sufficient prima facie evidence of the oath of the defendant.”
In connection with testimony in a perjury case that the witness had no recollection of administering the oath, could not recall the particular occurrence or in what manner he may have administered the oath, but did rely on his custom of administering oaths, the court declared, in State v. Day, 108 Minn. 121, 121 N.W. 611, that “the application was signed by appellant. The jurat was properly filled out and signed by the clerk, and was prima facie evidence that it was properly sworn to by appellant.” Notwithstanding his denials of being sworn, his conviction was upheld.
Under circumstances somewhat similar to those of the last cited case, the court used the following persuasive language in the case of Komp v. State, 129 Wis. 20, 108 N.W. 46:
“The official certificate, with proof of authenticity of the signatures of the affiant and the officer, was sufficient prima facie proof of the proper execution of the affidavit. . . . Mere want of present recollection as to the exact circumstances under which the oath was taken will not necessarily control the presumption of fact arising from the official certificate.”
See State v. Madigan, 57 Minn. 425, 59 N.W. 490.
In a forgery prosecution the Supreme Court of Arizona *329(Lewis v. People, 32 Ariz. 182, 256 Pac. 1048) states the rule thus:
“. . . The certificate of the notary was presumptive, and, so long as it stood unimpeached, conclusive, evidence they had so sworn.”
The authorities upon which the majority rely do not, in my view, afford aid and comfort to them. They cite 66 C.J.S., Notaries, pg. 620, which in turn cites Case v. People, 76 N.Y. (31 Sickles) 242, as standing for- the proposition that the jurat alone, unaided by other proof, is insufficient to establish the taking of an oath. I interpret Case v. People differently. The case stands for the proposition that the prima facie effect of a jurat is rebutted by a showing that in fact the affidavit was not sworn to.
The officer who purportedly took the affidavit testified in such manner that grave doubt was thrown on the matter of administering the oath. The accused postively stated that he had not taken the oath, as did others. Concerning the certificate the Court of Appeals of New York stated:
“The certificate which the notary had given, on its face, in connection with the testimony, raised a presumption, perhaps, that the officer had done his duty, and prima facie was barely enough to authorize such a conclusion. In view, however, of the fact that the officer himself, with the affidavit signed by him before him, refused to swear that he did administer the oath, this presumption was not very strong. While a presumption, arising from a given state of facts, may properly be indulged in favor of the performance by a public officer of an official duty, such presumption utterly fails, when the evidence shows that it is entirely unwarranted. In a case like this, there must be proof of the oath taken, independent of the notary’s certificate, signature, seal and jurat. Assuming that the evidence was prima facie sufficient, the presumption arising from the testimony was liable to be rebutted by other testimony that the *330oath was not administered; and we think the proof on behalf of the prisoner was entirely sufficient to overcome the evidence of the prosecution, and to establish that no oath ever was administered, and that the affidavit was not sworn to.”
O’Reiley v. People, 86 N.Y. 154, another case cited by the majority, is authority for the proposition that merely subscribing to an affidavit is not swearing to it. Stewart v. State, 25 Ala.App 155, 142 So. 590, is quite similar to the case of Case v People, supra
I would affirm the conviction for perjury
Mr. Justice McWilliams and Mr. Justice Schauer authorize me to say that they join in this dissent.