The evidence on behalf of the prisoner tended to prove, that on the occasion of the alleged perjury, no words passed between the officer and the accused, and what was done consisted only of the latter’s signature to the jurat, which he thereupon handed to the officer who affixed his own name to the certificate in silence. The force of this evidence was weakened, if not entirely destroyed, by the charge of the court. The learned judge who presided at the trial, with great care and deliberation, laid down a rule for the guidance of the jury, which is now assailed as erroneous. He stated it first in the form of an abstract proposition, and then applied it to the facts of the case on trial. In making such application he said: “ If O’Reilly delivered the bill and the affidavit to Kieley
to have
the same certified to by Kieley
as sworn to
before him,
intending
thereby to declare to said Kieley that by oath, he
i/ntended
to verify and did verify the statement subscribed by him, and the officer,
regarding
him as so declaring on oath, signs the certificate and jurat
for the purpose
of evidencing the verification, and then delivers it to the party in that form verified, and the party presents it in that form and shape to the board of supervisors
for the purpose
of procuring the audit of the bill, then I charge you that the oath has been duly and lawfully administered.” The criticism to which this proposition is subjected by the argument at the bar is in substance, that any form of an oath is rendered unnecessary, and the intention to swear is put in the place of the oath actually administered and taken. The criticism is just, precisely so far as it is true. Some 'form of an oath has always been required, for the double reason that only by some unequivocal form could the sworn be distinguished from the unsworn averment, and the sanctions of religion add their solemn and binding force to the act. (Pandects, xii,
2
,• 3 Coke’s Inst. 165; 1 Phil, on Ev. 15 ; 1 Starkie
*158
on Ev. 23; Lord Hardwicke, in
Omychund
v.
Barker,
1 Atkyns,
21;
Tyler on Oaths, 15; 1 Greenleaf on Ev., §§ 328, 371; 1 Alison’s Crim. Law, 474; 3 Wharton’s Am. Crim. Law, § 2205; 2 Arch. Crim. Pl., 1723.) While these sanctions have grown elastic, and gradually accommodated themselves to differences of creed, and varieties of belief, so that, as the Christian is sworn upon the Gospels, and invokes the Divine help to the truth of his testimony, the Jew also may be sworn upon the Pentateuch, the Quaker solemnly affirm without invoking the anger or aid of Deity, and the Gentoo kneel before his Brahmin priest with peculiar ceremonies, yet through all changes and under all forms the religious element has not , been utterly destroyed. So lately as the case of
People, ex rel. Kenyon,
v.
Sutherland
(81 N. Y.
8),
the taking of an oath is described as burdening the conscience. Some form of an oath would, therefore, seem tó be essential. It is almost as difficult to conceive of an act of swearing without any form as of a material substance having neither- shape nor locality. The changes of form incident to the growth of nations and of commerce have been serious, but have not dispensed with a form entirely. These changes are recognized and crystallized in our statute. (3 B. S. [5th ed.] 692.) The usual mode of administering oaths by the person who swears, laying his hand upon and kissing the Gospels, is first recognized, and that form prescribed as the general rule, and except as afterwards provided. (§ 114.) Then follow • the exceptions. There were persons who, on the one hand, were unwilling to ínvoké either the vengeance or the help of the Divine Being, and those who be- ‘ lieved in Him without believing in the Gospels or even in the Bible at all. The statute, therefore, next permits an oath to be administered in this form : “ You do swear in the presence of the ever-living God.” (§ 115.) The religious element is here preserved, since, in the absence of imprecation or invocation, the oath is taken as in the presence of the Supreme Being. But there were those whose conscience would not permit them to swear at all. To meet that emergency, the statute allows as a form: “You do solemnly, sincerely and truly declare and
*159
affirm.” (§ 116.) Then follow provisions to meet the cases of persons who have peculiar forms which they recognize as obligatory, and believers in other than the Christian religion. Such persons may be sworn in their own manner, or according to the peculiar ceremonies of the religion which they profess. (§§ 117, 118.) There remained, however, the case of infidels and unbelievers. Tor them there could be no religious element in an oath and no sanctity behind it. At first the inevitable result followed of their exclusion from the witness stand. But such rule of exclusion was soon modified, so as to protect them against personal inquiry, and finally, substantially abrogated by the constitutional provision rendering them no longer incompetent “ on account of their opinions in matters of religious belief.” But this is a rule which merely shuts the door on inquiry. It neither dispenses with some form of an oath, nor changes its inherent character. It assumes that the affiant recognizes the sacred and solemn nature of his obligation, and will permit neither inquiry nor contradiction. If there be something inconsistent in this mode of meeting the difficulty, the remedy must be applied elsewhere. But the statute goes one step further. It provides, generally, that a person sworn by any of the forms prescribed,
“
or in any form authorized by law,” shall be deemed to have been lawfully sworn; and this court has held that any form adopted, if not objected to by the affiant, is deemed to have received his assent and renders him liable to the consequences of perjury as if the oath had been administered in strict conformity with the statute.
(People
v.
Cook,
It is argued that the charge of the court ignores this necessity, and puts in the place of the act of taking the oath, and its administration by the officer, the intention of the one and the supposition of the other. That portion of the charge which we have quoted, and the statement of the rule made during the
*160
trial, seem to us fairly to justify the criticism. The only act referred to is the delivery of the hill and affidavit to the officer. If that is- done
for the purpose
of- getting the officer’s certificate and
with the intention
of declaring to him that the affiant does verify the statement he has subscribed, and the officer
rega/rds
him as so declaring on oath, that, followed by the certificate of the officer and the use of the affidavit, is held to be sufficient. But we think: the language cited does not, by itself, fairly represent the proposition presented to the jury, and should be construed in connection with other parts of the charge, which more fully explain its meaning. Thus construed, it rests upon something more than a mere intention, and does not ignore the necessity of an act of swearing and some form of the oath. The reasoning of the learned judge makes his meaning very plain. He relies upon the language of the jurat which the prisonei signed and handed to the officer. That language was as follows: “0. O’Reilly, being duly sworn, saith that the items of the within account are correct,” etc.; and the argument -is that these written and printed words handed to the officer were as effectual as if the accused had said in spoken words,
“
I swear that the items of the within account are correct,” etc.; in other words, that an audible utterance is not essential, and-the oath may be taken by the pen as well as by the tongue. The last proposition may, possibly, be true and not confined to cases of necessity, and yet the inquiry remains, and is the final and determining question in the case, whether the mere delivery of these written words, signed by the accused, to the officer for his certificate, constitutes an oath taken, and is the sufficient equivalent of an express and present declaration that the affiant swears to the truth of his statement. If such be the fact, it is difficult to sustain our decision in
Case
v.
The People
(
For these reasons the judgment should be reversed and a new trial granted.
All concur, except Folger, Oh. J., absent from argument.
Judgment reversed.