| Md. | Mar 14, 1893
delivered the opinion of the Court.
The appellant was indicted by the grand jury of Alleghany County for perjury. He demurred to the indict
The indictment alleges in substance that Izer had been regularly summoned and duly sworn to testify before the grand jury of Alleghany County, and that when interrogated by them he corruptly, knowingly, wilfully and maliciously swore falsely in reference to a subject-matter fully set forth in the indictment and then being investigated by the grand jury, and that he then and there committed the crime of perjury. The single question raised by the demurrer and also sought to be presented by two of the exceptions is this: Can a person who has corruptly, knowingly, wilfully and maliciously sworn falsely in giving testimony before a grand jury be indicted and tried for perjury? The appellant insists that he cannot, and his counsel bases that contention on the ground of public policy. The argument briefly stated is: To convict a witness of perjury for testifying falsely before the grand jury, the jurors must disclose what transpired in the jury room; but it is against public policy to allow a grand juror to disclose what transpired in the grand jury room; therefore, no matter how clear the perjury may be, no member of the grand jury is competent to give evidence of it, and consequently, as no one else can be cognizant of it, no presentment can be found and no prosecution can be maintained at all. But this is obviously fallacious. The authority which, to promote the public welfare, has imposed upon grand jurors the obligation of secrecy may, when the same public Welfare requires it, dispense with
Both upon principle and authority it is clear that an indictment for perjury committed before the grand jury may be found and supported upon the testimony of members of that body. If this were not so, it would, in many instances, be but an idle form to swear witnesses to testify to the truth before the grand jury. The guilty would often escape,indictment by the deliberate utterance of falsehood by witnesses, and the unoffending might, by the same means, be subjected to wanton pros-
Christian, in his note on page 12(5, 4th Black. Com,., says: A few years ago, at York, a gentleman of the grand jury heard a witness swear in Court, upon the trial of a prisoner, directly contrary to the evidence which he had given before the grand jury. He immediately communicated the circumstance to the Judge, who, upon consulting the Judge of the other Court was of opinion that public justice in this case required that the evidence which the witness had given before the grand jury should be disclosed; and the witness was committed for perjury, to be tried upon the testimony of the gentlemen of the grand jury. It was held that the object of this concealment was only to prevent the testimony produced before them from being contradicted by subornation of perjury on the part of the persons against whom bills were found. This is a privilege which may be waived by the Crown.” Mr. Justice Parke, in his charge to the grand jury at Middlesex Special Commission, said: You are assembled in consequence of a commission directed to
It follows then that there was no error in the ruling' of the Court upon’ the demurrer, nor in its rulings set forth in the fourth and fifth bills of exception.
The docket entries and the ticket given by the deputy clerk to Izer, showing that Izer had been sworn as a witness to the grand jury, were competent and admissible evidence, and there was no error in allowing them to go to the jury. . This is all that need be said in disposing of the first exception.
The second and third exceptions raise the only other question for review. It appears by the record, that H. W. Williamson, who was acting deputy clerk, administered to Izer the oath under which the latter testified before the grand jury. The second exception states that Williamson had acted as deputy clerk since 1886; that he had taken the oath of office as deputy and signed the-test book that year; that Mr-. Luman’s term as clerk had expired in 1891, and that he had been re-elected the same year, and had thereafter duly qualified, but that,, though there had been no re-appointment of Mr. Williamson, and no new oath of office administered to him, he continued to act as deputy clerk during Mr. Luman’s second term of office. Thereupon the prisoner moved
Of course, if Izer was never legally sworn to give testimony before the grand jury, no false statement made by him before that body could constitute indictable perjury; and if Williamson had no authority to administer to Izer the oath he did administer, Izer was not legally sworn. But Williamson was then in the undisputed possession of the office of deputy clerk, and since 1886 had openly and notoriously discharged the duties pertaining thereto. He was at least a de facto officer, filling a de jure office, and whatever defects or irregularities there may have been in the manner of his appointment or qualification, his acts, done under color of title, are, upon grounds of public policy and necessity, valid and binding. Norton vs. Shelby County, 118 U. S., 425. Or, as was said in Carleton vs. The People, 10 Mich., 259: “All that is required when there is an office, to make an officer defacto, is that the individual claiming the office is in possession of it, performing its duties and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary that his election or appointment be valid, for that would make him an officer de jure. The official acts of such persons are recognized as valid on grounds of public policy, and for the protection of those having official business to transact.’’ See also, State vs. Carroll, 38 Conn., 449;
Judgment affirmed.