Norton v. State

5 Ga. App. 586 | Ga. Ct. App. | 1909

Powell, J.

(After stating the foregoing facts.)

1. Passing by the general demurrer and taking up the special points presented, we come first to the consideration of the question as to.whether the indictment is defective in that it is joint against the three defendants. While there is some authority to the contrary, the sounder view seems to be that two or more persons may be jointly indicted for perjury or false swearing. “Plainly, if two witnesses on the trial of one cause commit separate perjuries, their indictments miist be separate. But should two join in one false affidavit, in reason they could be jointly indicted. And there may be other cases within the same principle.” 2 Bishop’s New Criminal Procedure, §936. The rationale of allowing a joint indictment' in cases where two or more persons join in the same false affidavit is admirably presented in State v. Winstandley, 151 Ind. 316 (51 N. E. 92).

2. The third ground of the demurrer presents the questions whether the affidavit which is the basis of the present prosecution is promissorj', and whether the violation of a promissory affidavit can be made the subject-matter of a prosecution for perjury or false ■swearing. Upon this question there is a veritable dearth of authority. Though the case was presented here by able and painstaking counsel on each side, the plaintiff in error'is able to cite on the question only the cases of U. S. v. Glover, 4 Cranch (C. C.), 190 (Fed. Cas. No. 15218), and State v. Dayton, 2 Zab. (23 N. J. L.) 49 (53 Am. Dec. 270), while the solicitor-general cites only U. S. v. Eddy, 134 Fed. 114, which he himself admits is so distinguishable oh its particular facts as to be hardly in point. The Glover case and the Dayton case, supra, are given as authority for the general statements made in 22 Am. & Eng. Enc. L. 682, and in 30 Cyc. 1411, that perjury can not be predicated of an official or other promissory oath, unless b'y express statutory provision. In Glover’s case the circuit judge instructed the jury that a promissory oath could not be the subject of a prosecution for perjury. No authority is cited and no reason is given for the bare statement. The reporter states that the case was an indictment for perjury upon an insolvent’s oath that he would “deliver up, convey, and transfer all his property,” etc., but he did not deliver up a promissory note which he had obtained after having made oath to his schedule. This precedent, while somewhat in point, is for many obvious reasons but slightly persuasive as authority on the question. The Dayton case is absolutely not in point. The court in that case merely held that in that state there was a statute which by its terms allowed certain designated officers to administer all oaths except official oaths and oaths required to be taken in open court, and which prescribed that perjury might be predicated of oaths so taken before the officers named. The court, in the discussion of a ease which did not relate to an official oath at all, threw out the side remark that perhaps the legislature omitted official oaths from the statute for the purpose of exempting officials from the penalties of perjury. Of course this is no ruling'as to whether an official oath may or may not be the subject-matter of false swearing.

After making a diligent search for satisfactory authority and finding none, we must decide the case as one of first impression. Our statute against false swearing was intended to punish the making of false oaths in other than judicial proceedings, being in this respect alone distinguished from the statute against perjury. Since perjury is limited to judicial investigations, and since these investigations generally relate to things which have already occurred, it is not remarkable that cases have not arisen involving ^the question as to whether perjury could consist in the violation of a promissory oath. The subject-matter of false swearing is not so. limited, and- may relate to the future. Morally speaking,, it is as-culpable for a person to swear that he will not do a thing, and 'then, knowingly and wilfully do that thing, as it is for him to- swear-falsely as to what he has already done. The element of moral baseness and wilful corruptness in false swearing, as well as in. perjury, is so predominant in the characterization of the crime-(for it is a non sequitur in cases of this kind to say that the defendant swore to what was not true, hence he is guilty: Goodwin v. State, 118 Ga. 770, 45 S. E. 620) that it would be judicially impossible in- most cases to infer the existence of the crime in all its baseness from the mere breach of a promissory oath. For example, if a sheriff to-day takes an official oath that he will faithfully execute the process committed to him, and a year hence fails, to levy an execution placed in his hands, it would be practically impossible from a judicial standpoint to correlate his intention in. taking the oath with his intention in breaking it by his neglect,, so as to say that he had wilfully, knowingly, and absolutely forsworn himself. This difficulty of sustaining in judicial contemplation the connection between the oath and the violative act in such a way as to Manifest the element of conscious, intentional, and wilful false swearing may justify a statement, in the nature of a. generalization, that false swearing can not be predicated of a promissory oath. But the oath of an election manager in this State-is not in the full sense of the word promissory. He subscribes it in the early morning before he begins to accept the ballots; and,, when the day is over and the voters’ lists, tally-sheets, and returns have been completed, he places the oath with the papers, as. a verification that they are true and correct, and delivers them all together to the proper official. In a strained sense, the oath off á witness sworn upon the trial of a case is promissory. He is-sworn, not that he has told the truth, but that he will tell the-truth. He may be sworn at the beginning of a trial, and, in a lengthy case, may not be called until after many days later, and may then be questioned as to matters which have occurred since he was sworn. And yet, since the object of the oath is to verify the truthfulness of all that he may say upon-the witness stand, he is. held under its sanctity and under its sanction, no matter how long-the lapse of time between the administration of the oath and the. delivery of the testimony. If an expert accountant were brought into court and sworn with the usual oath of a witness, and were then required to sit in court and take down a number of items involving calculations and to make up a report from them, and later he should come into court on the trial of the same ease, present his report, and say, without further oath, “this report is true,” and it should develop that he had knowingly and wilfully made a false report, would not an indictment for perjury lie against him ? So, too, in the case of an election manager. The object — in part> at least — of requiring him to be sworn is to give verification to what he shall in his official capacity report as having that day occurred before him in the holding of the election. As in the ease of the expert accountant mentioned above, he takes down, from time to time, items, so to speak, and at the end of the day summarizes them and makes a report, which he certifies is true; and this report and this certified summary, made, as they are, under the sanction of the oath he has taken, are transmitted, together with the oath, to the proper authorities. Is the connection between the oath and the election papers returned by the managers less close and direct than it would be if the managers first prepared the papers, the lists, returns, etc., and then attached an oath that they were correct? We think that it is not.

Certainly there is nothing inherent in the nature of a promissory oath, that would put it beyond legislative power to make the violation of such an oath criminal. It would seem to be highly expedient in many cases that such oaths should be made effective not only by the restraints of conscience, but by the fear of temporal punishment. An example of a promissory oath, the violation of which is to be punished as false swearing, according to the express language of the enactment itself, is found in the act of September 26, 1883 (Georgia Laws 1882-3, p. 101; Penal Code, §266). That statute provides that each jury commissioner in this State shall, before entering upon the discharge of his duty, subscribe an oath that he will faithfully and impartially discharge the duty of jury commissioner, to the best of-his skill and knowledge, and that the deliberations of the jury commissioners, while in the discharge of their duties, he will forever keep secret and inviolate, unless called upon to give evidence thereof in some court of justice or other legal tribunal of this State; and that the clerk shall take a similar oath. It is further provided that in case any jury commissioner or clerk shall wilfully and intentionally violate, the terms of his oath, “such person shall he guilty of the offense of false swearing.”

We will not presume that the legislature, in prescribing an oath to be taken by election managers, intended to put them under only such restraint as the oath might impose upon their consciences: In the nature of things, every incentive to integrity should surround the election manager in the discharge of his duties. Purity of elections is a sine qua non to the perpetuity of free democratic government. He who steals my coat is a thief, but he who steals the good will of my friends from me by falsifying the count, so as to ignore their ballots given in my behalf, is so much more degraded than a thief that in comparison of the respective crimes the simple larceny seems almost respectable. And if the private wrong is great, how much greater is the wrong to the State itself! We believe that the law-making power, by requiring an oath of the men who are .to receive and count the ballots in public elections, intended to deter them from dishonesty, not only by moral suasion, but also by the fear of a conviction for false swearing, and the consequent condign punishment in the penitentiary, prescribed for that crime. It may be true that many good men from time to time, in the heat of political zeal, have been guilty of this offense; but this in no wise robs the oath of an election manager of its sanctity, or renders the violation of it any the less reprehensible. Incidentally our decision upon this point as to the oath being promissory covers also the tenth ground of the demurrer, which raises the point that false swearing can not be predicated of an official oath.

3. The fourth, fifth, and seventh grounds of the demurrer raise the point that the nature of the primary election as to which the false swearing is charged to have taken place is not alleged with requisite certainty. It is contended that section 113 of the Political Code, in which the authority for the administration of the oath is found, relates only to primary elections held by some “political party, organization or association,” and that it is not alleged that the primary election in question was held by any political party, organization, or association; that the party, organization, or association holding it is not named or designated. The substance of the contention is that not all primary elections are within the protection of the statute, but only such primary elections as are held by some political party, organization, or association. We think that the words “held by any political party, organization ,or association,” as they appear in the statute, are not used in a restrictive sense, but are employed epithetically, — not with the intention of limiting the scope of the salutary enactment, but with the •purpose of extending it to every known form of political primary election; for every primary election is, according to the very definition of the word, — a definition not only recognized by popular usage and standard lexicographical authorities but also by a statute of this State (Penal Code, §448) which was in existence when the act now contained in the Political Code, §113, was adopted, — necessarily held by a party, or by an organization or association of some kind, for the purpose of making political nominations by ballot. If an election is so held, it is a primary election; if it is not so held, it is not a primary election. The expression “primary election,” ex vi termini, carries with it all the meaning that the words “held by any political party, organization or association” denote. This being true, th^ designation of the political party or association by which the primary election was held, if it had been added to the words of the indictment, could have been useful -only as words of description. If the primary election in question is described in the indictment with such reasonable certainty as to inform the defendants and the court as to what particular transaction is to be investigated, the description is legally adequate, •although additional or different words of description might also have been used with propriety. The primary election is described .as being the One held on a named day, at a named precinct, for -the purpose of nominating candidates for certain, designated offices ; it also appears who the managers were, who was the officer that qualified them, and further that it was the primary at which ■S. A. Morris was a candidate for member of the General Assembly from DeKalb county. We think that these things clearly identify the transaction and sufficiently inform the court and the defendants as to what primary election was referred to by the indictment. Nor is it material that the party rules under which the primary •election was to be held are not set forth. Party rules could only •add to the provisions of §§113-115 of the Political Code, and could not dispense with the things therein required. To be more specific, the oath of the managers, prescribed by section 113, is required by law, and is therefore a lawful oath within purview of the section, of the criminal code on the subject of false swearing; and no. party rule could dispense with the necessity for this oath; and. since it is alleged that the defendants were the managers of the election, it will be presumed that they were regularly appointed, under the rules, if any; especially since it is also alleged that they took the oath as managers and acted as such.

4. The objection raised by the sixth ground of the demurrer, that there is no such political division of this State as “Lithonia. district,” is not well taken. We infer that counsel intend thereby to raise the point that militia districts in this State are known by number, and not by name. Election precincts or districts are not necessarily coincident territory with militia districts, though outside of the cities they are usually so. However, we think this is immaterial ; for, in our opinion, either a militia district or an election precinct may be designated in pleadings either by its number or by the name according to which it is generally known.

5. An inspection of the indictment shows that the deficiency set up in the 8th ground of the demurrer does not in fact exist.

In fine, the demurrer, though raising many nice questions of law, is not, in our opinion, well taken as to any of the grounds.

Judgment affirmed.