479 S.E.2d 4 | Ga. Ct. App. | 1996
Lead Opinion
Bartel was indicted for perjury pursuant to OCGA § 16-10-70 (a). The indictment stemmed from Bartel’s testimony before a Floyd County Grand Jury investigating alleged irregularities in the operations of the Floyd County Hospital Authority. Bartel made a motion to dismiss the indictment on the basis that the oath he gave prior to testifying before the grand jury was deficient. The trial court granted this motion to dismiss, holding that Bartel could not be prosecuted for perjury because the oath given him was not the oath prescribed by OCGA § 15-12-68. In essence, the trial court ruled that Bartel was not a sworn witness, subject' to penalties for perjury. The state appeals. For the reasons set out below, we reverse.
In its sole enumeration of error, the státe contends the trial court erred in holding that “a witness is not capable of being prosecuted for perjury for knowingly and willfully making a false statement before a grand jury in a noncriminal proceeding.” We agree. In order to facilitate discussion of this case’s legal issues, we note that the oath administered to Bartel was ás follows: “Do you swear that the testimony you will give to this Floyd County Special Purpose Grand Jury in its civil investigation of the Hospital Authority of Floyd County and its affiliate organizations will be the truth, the whole truth, and nothing but the truth, so help you God?” This oath informed him what was being investigated, and who was doing the investigation.
The law of Georgia does authorize a perjury prosecution against witnesses who swear falsely in testimony before local grand juries
Grand juries are authorized by the 1994 amendments to the grand jury statutes to investigate any public authority of the county. See OCGA § 15-12-71 (b) (2). In connection with any such investigations, the grand jury is empowered, inter alia, “to compel the attendance of witnesses and to hear evidence.” (Emphasis supplied.) OCGA § 15-12-71 (c). The sanction of an oath or an affirmation equivalent thereto is necessary to the reception of any oral evidence. OCGA § 24-9-60. Except in specified cases from necessity, unsworn statements are not evidence in either criminal or civil cases. See Hilson v. State, 204 Ga. App. 200, 202 (1) (418 SE2d 784) (1992); see also Huiet v. Schwob Mfg. Co., 196 Ga. 855, 859 (2) (27 SE2d 743) (1943).
No set form for the oath to be taken by witnesses before grand juries conducting civil investigations is established in the Code. On its face, the oath prescribed by OCGA § 15-12-68 is only applicable to witnesses who testify before grand juries in criminal cases. Therefore, the strict compliance requirement announced in the decisions cited by Bartel and the trial court is limited to cases in which a witness testifying before a grand jury in a criminal case is not administered the oath prescribed by OCGA § 15-12-68.
Though the record in this case is not entirely clear regarding the authority under which the grand jury in the underlying matter was proceeding, it appears that there is no dispute that the civil investigation of the Floyd County Hospital Authority by the special purpose grand jury was authorized by law, and that the grand jury was authorized to compel Bartel to appear before it and present evidence relevant to the investigation. There is a dispute between the parties to this appeal as to whether this particular grand jury was operating under OCGA § 15-12-100 et seq., or § 15-12-71, or both, but our analysis applies whichever is the case. The record shows that in his response to Bartel’s motion to dismiss the indictment in the trial court, the District Attorney specifically asserted that the grand jury was empaneled under the provisions of OCGA § 15-12-100 et seq., and was proceeding under the authority of OCGA § 15-12-71 (b), (c), and (d). Bartel has not challenged that assertion either in the trial court or on appeal.
Because State v. Williams, 181 Ga. App. 204 (351 SE2d 727) (1986), and Inman v. State, 187 Ga. App. 652 (371 SE2d 230) (1988), cited by Bartel, as well as Vaughn v. State, 259 Ga. 325 (381 SE2d 30)
Likewise, the trial court’s reliance upon Ashburn v. State, 15 Ga. 246 (1854), is misplaced. Ashburn was not only a criminal case, but the oath administered to grand jury witnesses in that case did not even require them to tell the truth. Rather, it required them merely to “testify concerning such matters as should be inquired of by the Grand Jury.” Id. at 247. But for punctuation and capitalization, the statutorily prescribed oath for witnesses before grand juries at the time Ashburn was decided is identical to that prescribed by OCGA § 15-12-68.
Inasmuch as it appears that the grand jury in the underlying matter was authorized by law to conduct this civil investigation, and to do so in part through the vehicle of taking oral testimony from live witnesses, it defies logic to suggest that the witnesses called by the grand jury to provide that oral evidence can lie with impunity. It fur
Judgment reversed.
Dissenting Opinion
dissenting.
I respectfully dissent. I believe the case sub judice is controlled by Inman v. State, 187 Ga. App. 652 (371 SE2d 230). I therefore would affirm the trial court’s order granting Bartel’s motion to dismiss the indictment.