People v. Ramos

Boyle, J.

(dissenting). Joel Ramos was convicted by a jury of perjury predicated on false swearing1 and welfare fraud2 in connection with the filing of applications for assistance with the Michigan Department of Social Services.3 On conviction, the defendant was sentenced to concurrent prison terms of ten to fifteen and two to four years, respectively, on the false swearing and welfare fraud convictions.

Ramos challenges his false swearing conviction on the ground that his false application did not constitute false swearing because no "oath” was taken, and that the trial court erred in submitting the issue of "materiality” to the jury. Ramos also argues that his sentence on the false swearing conviction constitutes an abuse of discretion which should shock the conscience of this Court.

Finding no merit in either of these arguments, I would affirm the defendant’s convictions and sentence.

*568I

PACTS

On April 2, 1980, October 29, 1980, and January 15, 1981, Ramos completed and signed applications for assistance with the dss. A portion of each application required the applicant to list any owned motor vehicles. In the 1980 applications, Ramos listed only a 1970 Ford Econoline van valued at $300. In the 1981 application, Ramos again listed the van and one 1976, 250cc motorcycle. The 1981 application specified that the motorcycle was owned by Marilyn Miller. Miller was living with Ramos at the time of these applications. Both Ramos and Miller received dss assistance during this time period.4

On November 9, 1980, Donald Hilton, Jr., a criminal investigator for the dss, received a complaint that Ramos was seen leaving a doctor’s office driving a 1977 Porsche. Hilton’s subsequent investigation revealed that the Porsche was registered to Marilyn Miller. Hilton discovered that Miller had not listed the Porsche as an asset in her applications for dss assistance. He also discovered that Miller was registered as the owner of one Harley Davison 1200cc Low Rider motorcycle which was not listed as a motor vehicle asset on her application for dss assistance.

Those revelations, together with some unspecified evidence that Miller was not actually the owner of the motorcycle, prompted Hilton to further investigate the complaint. Hilton ultimately learned that Miller and Ramos were the registered owners of one 1980 Kubota tractor, the nondisclosure of which is the subject matter of the instant prosecution.

*569At trial, Robert Kain, an employee of S & W Equipment Company, testified that Ramos and Miller purchased the new tractor for $5,232 on October 9, 1980. The tractor was purchased with a cash deposit of $2,232 and a bank note in the amount of $3,000.

Craig Christopher Faust, the Vice President in charge of Loan Control at Pacesetter Bank & Trust, testified that the bank received an application for a loan from Ramos and Miller on October 9, 1980. A loan in the amount of $3,012 was eventually co-signed by Ramos and Miller for the purpose of purchasing a Kubota tractor.5 The bank’s records did not reveal any encumbrance other than Pacesetter’s on the tractor, and there was no indication that the down payment had been borrowed by Ramos and Miller. The records did indicate that Ramos and Miller had a monthly income of $1,000 to $2,000. The records also indicated that no further credit check was undertaken because Miller had an excellent record of payment on several other loans, including one in 1979 for $8,423 on a 1977 Porsche. The loan on the Kubota tractor was uneventfully serviced and finally paid off on April 19, 1982.

Two dss social workers assisted Ramos in his applications for assistance. Ramos’ case was assigned to Lola Verschoor in April of 1980 because she had been previously assigned to Marilyn Miller’s case. Verschoor testified that individual cases for members of the same household are normally assigned to the same caseworker to facilitate accuracy in the listing of assets. According to Verschoor, all assets of the household must be listed on each individual application.

Verschoor recalled assisting Ramos in his appli*570cation for several reasons. First, Marilyn Miller had been Verschoor’s client for a number of years. Miller was with Ramos when he filed his application for assistance. Second, Ramos was wearing a particularly nice pair of boots when he entered his application. Verschoor explained that it is unusual for a dss client to dress as well as Ramos was during the interview. Third, Verschoor noted that the Ramos-Miller household expenses were extremely high for the amount of a grant allowed by the state.

Verschoor testified that Ramos appeared to understand their conversations and appeared to be fairly literate. According to Verschoor, Ramos signed both the April, 1980, and January, 1981, applications in her presence after being questioned as to the existence of any other assets. Verschoor did not administer an oath nor did she read the application form to Ramos, but she did witness his signature with her own signature. The January, 1981, application form included an affidavit "swearing” that the applicant could be prosecuted for fraud or perjury for omissions or false statements.

Since Verschoor was ill when Ramos filed his October 29, 1980, application, Dealisa Husted, another dss social worker, conducted the interview. Husted remembered Ramos and also remembered that Marilyn Miller was present during the interview. According to Husted, Ramos spoke with a slight accent, but his sentences were reasonably well constructed, and he appeared to be a fairly literate person. Husted testified that she routinely went through each application page by page to determine whether there were any errors or omissions. She also routinely questioned applicants as to whether they had any assets not listed in the application form. The form signed by Ramos on *571October 29, 1980, also contained an affidavit "swearing” that any omission or false statement could result in a prosecution for fraud or perjury. Like Verschoor, Husted did not administer an oath, but merely witnessed Ramos’ signature on the application with her own signature.

Ramos’ and Miller’s assistance was terminated in January of 1981 when the dss learned of the purchase of the Kubota tractor.6 Ramos declined to testify in the subsequent criminal proceedings. However, Donald Hilton, Jr., testified that, on January 13, 1981, Ramos told him that he had borrowed the down payment for the tractor from his in-laws and had intended to use it to perform contracting work in order to get off welfare. The prosecution also introduced a statement given by Ramos in his January 15, 1981, administrative appeal of the termination of dss assistance. In the latter statement, Ramos admitted that he had purchased a motorcycle with a borrowed down payment, but had lost it "to the man” because he could not make the payments. Ramos further asserted that the tractor was solely the property of his in-laws for use on their dairy farm.

As previously noted, Ramos was found guilty in a jury trial of both welfare fraud and perjury predicated on false swearing. The Court of Appeals affirmed both convictions in an unpublished per curiam opinion dated April 9, 1985.

*572II

THE PERJURY CONVICTION

A. DOES THE LEGISLATURE INTEND THAT A FALSE STATEMENT IN A DSS ASSISTANCE APPLICATION BE PUNISHABLE AS PERJURY ONLY IF IT IS ACCOMPANIED BY THE TAKING OF AN ACTUAL OATH?

Section 25 of the Social Welfare Act, 1968 PA 232, provides in pertinent part:

An applicant for assistance or a third party acting responsibly in his behalf shall deliver his application in writing to the county department of social services in the manner and form prescribed by the state department. All statements in the application shall be over the signature or witnessed mark of the applicant or such third party and shall include a declaration under the penalties of perjury that the application has been examined by or read to the applicant or third party, and, to the best of the applicant’s or third party’s knowledge, that all facts are true in each material point and are complete .... [MCL 400.25; MSA 16.425. Emphasis added.][7]

Although the legal implications of a falsified application would appear to be clear, the Social Welfare Act itself does not prescribe the penalty for this form of perjury, nor does it authorize the administration of an actual oath.

Mr. Ramos was charged, convicted, and sentenced under Michigan’s false swearing perjury statute which provides:

Any person authorized by any statute of this state to take an oath, or any person of whom an *573oath shall be required by law, who shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury, a felony, punishable by imprisonment in the state prison not more than fifteen [15] years. [MCL 750.423; MSA 28.665.]

The dss application forms signed by Ramos and upon which his perjury conviction is based contained the following language above the applicant’s signature:

I swear or affirm that I have answered all questions on this form as completely as I was able and that all the information that I have written on this form or told to a case worker is true. I also know that I may be asked to show proof of any information I have given. I also know that if I have intentionally left any information out or if I have given false information, I can be prosecuted for fraud or perjury.

Ramos raises two issues of statutory construction regarding his perjury conviction: first, that a perjury prosecution is not authorized by § 25 of the Social Welfare Act, and, second, that no actual oath was authorized or administered to support his conviction.

In my view, §25 of the Social Welfare Act indicates a legislative intent that an oath or affirmation of truthfulness is contemplated by the phrase "under the penalties of perjury,” and that the Penal Code penalizes wilfully false statements made in an extrajudicial setting subject to the penalty of perjury.

The examination of these issues requires a review of the historical development of perjury.

At its origins in the ecclesiastical courts, the Star Chamber, and English common law, the offense of perjury was limited to false oaths in *574judicial proceedings.8 However, as one commentator has explained:

In time, sworn statements came to be required in many matters other than judicial proceedings and with the growing importance of this problem came recognition of the social interest in the integrity of such an oath. Hence the common law provided a penalty for wilful and corrupt false swearing of such a nature, although the name "perjury” was not employed. As said by Lord Denman in such a case: "It is not, properly speaking, perjury because the same consequences do not attach. But it is a misdemeanour in falsely taking an oath which a party is required by Parliament to take before a magistrate.” [Perkins & Boyce, Criminal Law (3d ed), p 511.]

Thus, according to Perkins & Boyce, there are two offenses at common law. Perjury is a false oath in a judicial proceeding in regard to a material matter. False swearing is what would be perjury except that it is not in a judicial proceeding, but in some other proceeding or matter in which an oath is required by law. A false oath at common law is a wilful and corrupt sworn statement made without sincere belief in its truthfulness. Id.

The codification of this crime in American law has reflected the diversity among the states. As Perkins & Boyce explain:

There have been variations in the statutory plan. One plan has been to group all criminally false oaths into one offense known as "perjury”; another has included distinctions which may take the form of different grades or degrees of perjury, or may retain the common-law scheme of one offense known as "perjury” and another called *575"false swearing.” Under the latter plan, as at common law, false swearing is in the nature of a lesser included offense, convictable under a charge of perjury. Needless to say, since the greater includes the less, one corrupt oath will not support convictions of both. Whatever plan is used there has been a tendency to enlarge the field of punishable sworn falsehood, as will be emphasized presently. And where precision is not required there is a tendency to use the word "perjury” throughout, despite the fact that some jurisdictions have a different label for a part thereof. [Id., p 512.]

Michigan follows the variation in which perjury is divided into two grades. The higher offense, described in MCL 750.422; MSA 28.664, is the modern successor of the common-law crime of perjury. This provision entitled "Perjury Committed in Courts,” penalizes "[a]ny person who, being lawfully required to depose the truth in any proceeding in a court of justice shall commit perjury . . . .” The other offense, under which Ramos was convicted, is described in MCL 750.423; MSA 28.665 and represents the successor of common-law false swearing. This provision penalizes "[a]ny person authorized by any statute of this state to take an oath, or any person of whom an oath shall be required by law, who shall wilfully swear falsely in regard to any matter or thing, respecting which such oath is authorized or required . . . .” It would appear undisputed and inescapable that this latter statute is addressed to statements made in an extrajudicial setting. Perkins & Boyce, supra, p 512, n 16.

This portion of the historical development of perjury explains how a perjury prosecution may be authorized by the Social Welfare Act. It does not explain how Ramos could be convicted of perjury predicated on false swearing without the adminis*576tration of an actual oath. This second question requires an understanding of the word "oath.”

There are two common meanings of the word "oath”:

In its broadest sense, the term is used to include all forms of attestation by which a party signifies that he is bound in conscience to perform the act faithfully and truly. In a more restricted sense, it excludes all those forms of attestation or promise which are not accompanied by an imprecation. [Black’s Law Dictionary (5th ed), p 966.]

The broad sense of the word has often been held to include the signing of a statement "under the penalties of perjury.”9 Thus, it has been held that such a phrase demonstrates the intent of the Legislature to have the phrase serve as an oath or affirmation, Nimmo v Wyoming, 603 P2d 386 (Wy, 1979). One commentator also has explained that the phrase is the legally recognized equivalent of an oath:

Recently an additional substitute for an oath has made its appearance, this one being provided for the convenience of the declarant. It is by virtue of legislation providing for certain signed statements (such as the declaration of an income tax return) to be made expressly "under the penalties of perjury.” The quoted words are a part of the signed declaration, and the statute provides the same penalties as for perjury if the signer does not believe the statement to be true and correct as to every material matter.
Where precision is not required there is a ten*577dency to employ the word "oath” to include a legally-recognized equivalent as well as an oath itself, and at times this has been expressly authorized by statute. [Perkins & Boyce, supra, p 513.]

Section 25 of the Social Welfare Act utilizes precisely this oath substitute. As Perkins and Boyce observe:

The most recent substitute for an oath is not "administered” in any strict sense of the term. It is merely a declaration signed "under the penalties of perjury.” Such a declaration, however, has no legal significance unless made under authority of an appropriate statute. [Id., pp 513-514.]

Thus, in the absence of the statutory language of § 25, if an applicant for welfare assistance voluntarily wrote "under penalties of perjury” over his signature, there would be no statutory authorization for a prosecution of perjury predicated on false swearing. Similarly, I would agree that there could be no criminal liability if the phrase appeared in a printed form prepared by the agency, but its insertion was without statutory authority. Anno: Criminal offense of perjury as affected by fact that affidavit or statement under oath upon which charge of perjury was predicated was requirement not of statute, but of boards or officials in administration of statutes, 108 ALR 1240. Here, by contrast, as the majority does not dispute, § 25 of the statute authorizes the declaration to be made under the penalties of perjury and the declaration was in fact so made. The. Legislature has thus made criminally cognizable a declaration made under the penalties of perjury.

Similar legislative schemes can be found elsewhere in Michigan law. Under § 3(a) of the cigarette tax act, 1947 PA 265, MCL 205.503(3)(a); *578MSA 7.411(3)(3)(a), license applications for the sale of cigarettes must be signed "under penalty of perjury . . . Section 104(3)(c) of the Michigan revised uniform limited partnership act, MCL 449.1204(3)(c); MSA 20.1204(3)(c), specifies that "The execution of a certificate [of limited partnership] by a general partner constitutes an affirmation under the penalties of perjury that the facts stated in the certificate are true.” These statutes do not authorize the administration of an actual oath or affirmation and do not provide a specific penalty for this form of perjury.10

It is entirely consistent with the purposes underlying the Social Welfare Act11 (and similar administrative regulations) to do away with the costly and burdensome formality of a notarized signature. Those purposes do not suggest that the Legislature intended to eliminate criminal liability for false swearing on assistance applications, but only, in the words of Perkins & Boyce, that the Legislature intended to provide an alternative "for the convenience of the declarant.” Perkins & Boyce, supra, p 513. Indeed, on its face, both the statutory language and the language of the application form create criminal liability for perjury. Any other reading of § 25 of the Social Welfare Act effectively renders the phrase "under the penalties of perjury” mere surplusage or, in the words of defense counsel "disinformation.” I can accept neither assessment of legislative purpose, since a *579reasonable construction of the phrase gives it meaning and effect. See 2A Sands, Sutherland Statutory Construction (4th ed), § 47.37, p 258.

Assuming that the false swearing perjury statute renders criminal statements made in an extrajudicial setting, and that the phrase "under penalty of perjury” encompasses both an oath and an affirmation, the majority responds that this construction of § 25 of the Social Welfare Act is not reasonable because it conflicts with § 1432 of the Revised Judicature Act:

The usual mode of administrating oaths now practiced in this state, by the person who swears holding up the right hand, shall be observed in all cases in which an oath may be administered by law except in the cases herein otherwise provided. The oath should commence, "You do solemnly swear or affirm.” [MCL 600.1432; MSA 27A.1432][12]

According to the majority, this section of the Revised Judicature Act does not authorize the use of oath substitutes and therefore the Legislature did not intend that defendant could be convicted of perjury predicated upon false swearing.

My reading of this statute indicates that it was intended by the Legislature only to prescribe the method of administering oaths in judicial proceedings. As early as the 1857 compilation by Justice Thomas M. Cooley, the present § 1432 of the Revised Judicature Act appeared in tit 29, Of Proceedings in Personal Actions, ch 127, Of Evi*580dence, § 4333. In the 1882 compilation by Andrew Howell, the same statute can be found in tit 30, Of Proceedings in Personal Actions, ch 262, Of Evidence, § 7537. In the 1897 compilation by Lewis Miller, the statute appeared in ch 18, Of Proceedings in Civil Actions, Subchapter 282, Evidence, § 10136. In the 1915 compilation, this statute appears in tit 14, The Judicial Department, ch 17, Evidence, § 12568. In the 1929 compilation, the same statute appears in tit 27, Judicial Department, part 1, Courts and Procedure, ch 266, The Judicature Act, subchapter 17, Of Evidence, § 14234. In the 1948 compilation, the statute again appears under subchapter 17 of the Judicature Act, entitled "Of Evidence.” However, in the Revised Judicature Act, 1961 PA 236, the method of taking oaths was moved to ch 14, which contains general provisions for the conduct of court business. There, the provision remained in the 1979 compilation. See 1979 CL 1432. In every compilation since 1857, the statute cited by the dissent has appeared in the compiled laws in portions dealing with judicial proceedings. Indeed, for the most part, this statute has been specifically codified under subchapters addressed to the taking of evidence. Moreover, although exceptions may be found, the thrust of the Revised Judicature Act as a whole is judicial and ancillary proceedings. Thus, the preamble to the Revised Judicature Act provides:

An act to revise and consolidate the statutes relating to the organization and jurisdiction of the courts of this state; the powers and duties of such courts, and of the judges and other officers thereof; the forms and attributes of civil claims and actions; the time within which civil actions and proceedings may be brought in said courts; pleading, evidence, practice and procedure in civil and *581criminal actions and proceedings in said courts; to provide remedies and penalties for the violation of certain provisions of this act; and to repeal all acts and parts of acts inconsistent with, or contravening any of the provisions of this act.

Contrary to the majority, I believe that the only reasonable view of § 1432 of the Revised Judicature Act leads to the conclusion that it has originally and consistently been limited to the taking of oaths in judicial proceedings. Furthermore, even if the statute were read to govern an oath administered in extrajudicial proceedings, defendant offers no support for the conclusion that it is the intent of the Legislature that perjury predicated on false swearing not be punishable under the Penal Code in the absence of an oath. Since the majority does not contest that perjury may occur in extrajudicial settings, the logical result of defendant’s argument is that in all legislative schemes in which reference is made to statements made under the penalties of perjury, the Legislature intends that an actual oath be administered for the conduct to be punishable as perjury.

Even if I were to assume, contrary to all indications in the history of RJA, § 1432, that it applies to extrajudicial oaths, I would not be inclined to conclude that it thereby invalidates the oath substitutes subsequently created by the Legislature. To do so would be to impose a rigid and artificial standard of linguistic consistency upon the continuing acts of the Legislature. As one commentator has explained:

Experience indicates that a legislature does not deliberately enact inconsistent provisions when it is cognizant of them both, without expressly recognizing the inconsistency. The critical question concerns how reasonable it is to assume that legisla*582tors and members of the public know the provisions of other acts on the same subject when they consider the meaning of the act to be construed. Even in the case of an act which refers to a prior one, although the reference makes discovery of the prior act possible, one cannot be certain that discovery will occur. These are the considerations which help determine if statutes should be construed together.
It is unrealistic to assume that whenever the legislature passes a statute it has in mind all prior acts relating to the same subject matter. The legislature may have had in mind some but not all of the statutes relating to the same subject matter when it enacts a statute. Perhaps in the case of a highly important act, the legislature, or the draftsman may have considered all prior statutes relating to the same subject, but in the absence of some evidence that the legislators were cognizant of the other statutes the presumption should be rejected and the act not so construed in pari materia until all other means of determining the intent of the legislature have been exhausted. Then on the basis of the desirability of maintaining certainty in the law should the presumption be utilized and the statutes construed together. This principle that such statutes should be construed in pari materia is a restatement of the presumption against the implied repeal of statutes. [2A Sands, Sutherland Statutory Construction (4th ed), § 51.01, pp 450-451.]

As previously noted, other states have recognized the signing of a document "under the penalties of perjury” as an oath substitute and have allowed perjury prosecutions for false statements in these documents.13 As the majority has carefully pointed out, these other states also have enacted statutes specifically authorizing perjury prosecutions for falsification of these documents. Where the Legislature has enacted such statutes, the *583intent to criminalize false swearing is clear. What the majority fails to explain is why it should logically or legally follow from the oath provision in the rja, that although §25 uses the phrase "under penalty of perjury” and the Penal Code criminalizes extrajudicial perjury, our Legislature does not intend that a statement "under penalty of perjury” be prosecuted as perjury.

Stripped to its essentials, the majority’s formulation is as follows: The general perjury provision does not say that any person who verifies a statement by a written declaration that is made under the penalties of perjury, is guilty of perjury. The Social Welfare Act provides only that the application shall be made "under the penalties of perjury.” The rja proscribes the form of oath. Therefore, despite the common legislative reference in regulatory statutes to statements made or verified under penalty of perjury, we must conclude that the Legislature does not intend to make such statements punishable under the Penal Code of this state. This formulation effectively renders the "penalties of perjury” language in § 25 of the Social Welfare Act nugatory.

The question raised by § 25 of the Social Welfare Act is ultimately one of legislative purpose and that purpose is evident in the act itself. No due process question of vagueness is raised by the defendant, nor are we inclined to believe that such a challenge would prevail. See Boyce Motor Lines, Inc v United States, 342 US 337; 72 S Ct 329; 96 L Ed 367 (1952).14

*584In sum, I would reject the defendant’s contention that no "oath,” as required for a perjury conviction,15 was administered. The Penal Code authorizes punishment for extrajudicial false swearing, and § 25 of the Social Welfare Act indicates that the signing of the assistance application by Ramos under the penalties of perjury was intended by the Legislature as a substitute for the administration of an actual oath. I would also reject the defendant’s contention that prosecutions *585of perjury predicated on false swearing are not authorized by the Social Welfare Act, since the plain language of § 25 of the act authorizes criminal liability in perjury for false statements and omissions. In short, I would decline the defendant’s invitation to transform the mere waiver of a burdensome formality into a grant of statutory immunity.

B. WAS THE FALSE STATEMENT IN THE DEFENDANT’S APPLICATION PROPERLY FOUND TO BE MATERIAL?

Section 56g of the Social Welfare Act, MCL 400.56g; MSA 16.456(7), provides in part:

(1) Aid to dependent children may be provided to a dependent child or family who, in addition to the requirements under section 56 meets the following:
(a) Does not own tangible and intangible property having a market value in excess of $1,500.00 for a single individual, or if a family group, the tangible and intangible property of the family group does not exceed $2,000.00. The following is excluded in making the determination of the value of tangible or intangible property: . . . (iv) property used in earning income, including farm stock or implements, horses, cattle, poultry, power machinery and motor powered vehicles or tools, equipment, or an automobile necessary for attaining or retaining remunerative employment and having a fair market value of less than $750.00.

In pretrial motions to dismiss, the defendant argued that the Kubota tractor was exempt under § 56g(l)(a)(iv) because it was property used to earn income. The defendant theorized that assistance would therefore have not been denied even if he had listed the tractor on the application form and that his failure to list the tractor was therefore *586immaterial to the administrative proceeding. The defendant pointed out that materiality is a requisite element of the crime of false swearing, see People v Kert, 304 Mich 148, 154-155; 7 NW 251 (1943), and argued that, since the omission of the tractor was not a material fact, the perjury charges must be dismissed.

The trial court denied the defendant’s motion, reasoning that the purposes for which he purchased and held the tractor were questions of fact for the trial court. Specifically, the trial court observed:

I think you’re right to this extent, that in order to sustain the charges the prosecutor must show that disclosure of the purported ownership of the Kubota tractor would have been material, which means if such disclosure would have effected the outcome of the determination of eligibility to receive benefits, you’re probably right there, but when you ask me to dismiss this case without giving him a chance to do so, then you’re not bringing the motion as a matter of law, you’re bringing a motion as a matter of fact; and I expect I can’t even deny you the right to do that if you want to put those facts in front of me. I’m here to listen to them, but I don’t have any testimony on those facts or any evidence on those facts.

Thus, it is clear that defendant was seeking a determination as a matter of law that the front end loader was property "used in earning income,” an issue that clearly could not be resolved without a testimonial record.

The defendant rested without presenting any testimony and requested a jury instruction that it must find that the statement, if believed, "could have affected the grant of benefits. That is, if the statement was material to the grant of benefits.” Defendant further requested that the jury be told *587that if it found that the tractor and loader "is property used or intended to be used in earning income, then you must find that the property is properly excluded from making a determination of property owned and that the disclosure was not material in that it would not have affected the defendant’s grant of assistance.”16 The trial court charged the jury that they must find that the statement was one which if believed could have affected the course or outcome of such public assistance, but declined to give the second portion of the instruction requested.

First, the instruction regarding materiality was essentially that requested by defendant in the initial part of the instruction. Second, the instruction properly defined materiality as material to a matter in issue, in this case to the defendant’s eligibility for assistance. Thus, as this Court observed in People v Almashy, 229 Mich 227; 201 NW 231 (1924), in a question as to the sufficiency of a surety, the Court’s determination as to what property the defendant owned was material since the issue before the Court concerned the financial responsibility of the defendant. Likewise, while it is correct that if the property was income producing it would have been exempt, disclosure that the defendant owned the property had to be made to determine that fact and thus the defendant’s eligibility for assistance. The test of materiality is not the actual effect of the alleged falsity, but the capacity to influence "the tribunal” on the issue *588before it. United States v Masters, 484 F2d 1251 (CA 10, 1973); United States v Molinares, 700 F2d 647 (CA 11, 1983); United States v Flowers, 813 F2d 1320 (CA 4, 1987).

The defendant’s contention that the instruction was erroneous because the jury could have found Ramos not guilty of welfare fraud and guilty of perjury for precisely the same act illustrates a misunderstanding in the elements of the two charges. Perjury requires only a wilful false statement, material to the issue being considered; welfare fraud requires a false statement that is intended to or does result in the applicant’s receiving benefits in excess of those to which he is entitled. See Perkins & Boyce, Criminal Law (3d ed), p 511. Cf. MCL 400.60; MSA 16.460. The first statute penalizes conduct that is material to the agency’s determination of eligibility, the second to the actual outcome of the agency’s action. The first is a question whether a perjured statement could have affected the outcome; the second, on this record, is a question whether it did, in fact, effect the outcome.

Finally, were I to agree that the materiality of perjury is always a question of law, I would find no error here. Defendant requested a materiality instruction, and the trial court submitted the question to the jury. If it was incorrect to submit this issue to the jury, this is clearly an error of which the defendant cannot complain. See People v Kert, supra.

in

CONCLUSION

Finding no merit in the remaining issues, I would affirm the decision and order of the Court of *589Appeals, upholding both of the defendant’s convictions and sentences.

Griffin, J., took no part in the decision of this case.

MCL 750.423; MSA 28.665.

MCL 400.60; MSA 16.460. Since the issues raised by defendant regarding this conviction are not addressed in the majority opinion, and since I too find no merit in them, I have not addressed them in this opinion.

Specifically, the defendant was charged with having filed applications for assistance in which he failed to disclose ownership of a farm tractor and front end loader in violation of a statute that precludes the making of a false statement to obtain relief in an amount more than $500, MCL 400.60(1); MSA 16.460(1), and false swearing on a material matter for which an oath is required, MCL 750.423; MSA 28.665.

The record indicates that Miller had been receiving assistance for a number of years prior to these applications.

Faust explained that the additional twelve dollars was for filing fees to secure the tractor.

According to the social workers’ testimony, as well as the testimony of Donald Hilton, Jr., it was the policy of the dss to limit personal assets to $2,000 for households receiving assistance. See MCL 400.56g; MSA 16.456(7) and the discussion in part b.

This language was added to 1945 PA 225, § 25, by 1957 PA 95, § 25, and was reenacted in 1965 PA 401 with minor changes.

An interesting discussion of this early development can be found in Hourie v Maryland, 53 Md App 62; 452 A2d 440 (1982), aff'd 298 Md 50; 467 A2d 1016 (1983).

See American Civil Liberties Union v Los Angeles Bd of Ed, 59 Cal 2d 203; 28 Cal Rptr 700; 379 P2d 4 (1963), cert den 375 US 823 (1963), People v Laws, 120 Cal App 3d 1022; 178 Cal Rptr 102 (1981), People v Doss, 99 Ill App 3d 1026; 55 Ill Dec 349; 426 NE2d 324 (1981), Valdez v State, 300 Md 160; 476 A2d 1162 (1984), and Nimmo v Wyoming, 603 P2d 386 (Wy, 1979).

In addition to these legislative schemes, Chapter 53 of the Revised Judicature Act, 1961 PA 236, addressing receiverships for wage earners, requires that the debtor’s list of creditors be filed "in the form of a petition under oath and under the pains and penalties of perjury . . . .” MCL 600.5305; MSA 27A.5305.

The primary purpose of adc assistance is protection of needy children, although the needs of a parent or relative with whom the child is living may be considered in determining the amount of aid. Evans v Dep’t of Social Services, 22 Mich App 633, 638; 178 NW2d 173 (1970).

Another oath substitute is contained in § 1434 of the Revised Judicature Act which provides:

Every person conscientiously opposed to taking an oath may, instead of swearing, solemnly and sincerely affirm, under the pains and penalties of perjury. [MCL 600.1434; MSA 27A.1434.]

See n 9.

As noted by Perkins & Boyce, the modern federal scheme also uses the phrase "under the penalties of perjury” as a substitute for the administration of an oath. Federal law expressly provides:

Whoever—
(2) in any declaration, certificate, verification, or statement
*584under penalty of perjury as permitted under section 1746 of title 28, United States Code . . ., willfully subscribes as true any material matter which he does not believe to be true;
is guilty of perjury and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States. [18 USC 1621.]

The second paragraph of this statute was added in 1976 by PL 94-550 and now allows perjury prosecutions in many instances in which a signature is provided under penalties of perjury. See, e.g., Dickinson v Wainwright, 626 F2d 1184 (CA 5, 1980). This observation is important because the majority relies upon the reasoning of People v Kasparis, 107 Mich App 294; 390 NW2d 241 (1981), which in turn cites Escobar v United States, 388 F2d 661 (CA 5, 1967), cert den 390 US 1024 (1968), for the proposition that the phrase "under the penalties of perjury” is of purely historical significance and will not support a conviction of perjury. The Escobar decision, however, was based upon the unique statutory history of the Internal Revenue Code and 26 USC 7206. Escobar explains that a predecessor statute within the Internal Revenue Code allowed prosecutions under the perjury statute of the Federal Criminal Code. A later revision of the Internal Revenue Code added a criminal enforcement provision limited to tax violations, but retained a reference to documents subscribed "under the penalties of perjury.” Id., p 664. The Escobar court quite reasonably concluded that the congressional addition of express criminal provisions within the code itself indicated a legislative intent not to penalize perjury under the general perjury provision of the Criminal Code, but only to reference those documents that might create criminal liability under the Internal Revenue Code’s own criminal provision. Michigan’s Social Welfare Act has no similar history and therefore evidences no similar legislative purpose. Indeed, Escobar is itself the exception within the body of federal law.

4 Torcia, Wharton’s Criminal Law (14th ed), § 611, p 335; Perkins & Boyce, supra, p 514.

I note that the defendant failed to interpose an objection to the instruction and has also failed to move for a new trial on the basis of the alleged instructional error. See People v Handley, 415 Mich 356, 360; 329 NW2d 710 (1982); People v Kelly, 423 Mich 261, 271-272; 378 NW2d 365 (1985). I also note that the defendant put forth no substantive evidence disputing his equity in the tractor or his purposes in acquiring the tractor, while the prosecution submitted evidence that the tractor was purchased and owned by the defendant for personal use.