I concur in the result reached by Judge MILLER, and favor a reversal of the judgment upon three grounds.
1st. It was necessary for the People to show that the oath alleged to be false, was taken before either a de jure, or ade facto notary. The only proof given was that Mellick, who administered the oath, had acted as a notary for some years. This was prima facie evidence that he was a de jure notary. The defendant had the right to meet this prima facie case by any evidence tending to show that he was not de jure a notary, and the evidence offered to show that Mellick, at the time of his alleged appointment, and subsequently to the time he administered the oath, was a resident of New Jersey, had such tendency. If true, it would have shown that he was a person who could not have been legally appointed, and hence would have destroyed the presumption that he had actually been appointed. There could be no presumption that the governor appointed one to the office of notary whom he had no legal right to appoint. If this evidence had therefore been received and uncontradicted, it would have been necessary then for the People to show that Mellick was a notary de facto. This could not have been shown by evidence that he had merely acted as such. The de facto character of officers is never established by simple proof that they have acted as such. In addition to such proof, it must be shown that they had color of office, or some semblance of competent authority. This is generally shown by proof of *Page 238 some election or appointment, formal, but irregular or defective, under which the officer has assumed to act. I am not, however, prepared to deny that an officer may have sufficient color, in some cases, without any appointment or election whatever; as when he takes possession of the public building or room where the duties are to be discharged, and has possession of the public property pertaining to the office, and is thus clothed with all the indicia of official position, and has for a considerable time, with the acquiescence of the public, and without dispute, openly and notoriously exercised the duties of the office. Such a case could rarely, if ever occur in this country; but if it should occur, it might give color of office. To illustrate more clearly my meaning; if one should take possession of a county clerk's office, claiming to be clerk, and should there act as clerk for a considerable time, by the general acquiescence of the public, there being no one else to exercise the duties of the office, he might have sufficient color of office to make him clerk de facto. But a notary public having no public office, clothed with none of the symbols or outward tokens of official position, being one of thousands who may, any where in the same county, exercise the duties of the same office, cannot get color of office by simply acting from time to time as he might have opportunity. He can get color of office only by an appointment emanating from the appointing power, or from some power having, at least, a colorable right to make the appointment. If the governor should commission him, without confirmation by the Senate, or while he was a non-resident, and he should then act, he would be in office under color of appointment, and thus become a notary de facto. These views are abundantly sustained by the authorities in this State. (The People v. Collins, 7 J.R., 549; Wilcox v. Smith, 5 Wend., 231; Ring v. Grout, 7 id., 341; People v. White, 24 id., 520; Hamlin v. Dingman, 5 Lans., 61; People v. Cook, 14 Barb., 259; S.C., 8 N.Y., 67.) There was, therefore, error in the exclusion of the evidence as to the residence of the notary. *Page 239
2. For reasons stated fully by Judge MILLER, there was error in the admission of the evidence of the witness McCall, as to the declarations of Reed.
3. It is conceded that there could be no conviction under this indictment, if the words "according to the best of their information, knowledge and belief" applied to the whole affidavit. I think they do so apply, and concur generally with what Judge MILLER says upon this point. The question is not how the affidavit may be made to read, by a critical and strictly grammatical construction, but how it would be commonly understood. We are to construe this as we think mankind generally would understand it. Such qualifying words in brief affidavits are usually put at the end, and are usually intended to qualify the whole affidavit. So far as I can perceive, there was just as much reason for qualifying the whole as the part immediately preceding the qualifying words. But if the legal construction of this affidavit is in doubt, the prisoner is entitled to the benefit of such doubt. It is a humane principle of the law that a prisoner shall have the benefit, not only of doubts upon the facts, but doubts also upon the law.
I concur, therefore, in the reversal of the judgment.