State v. LewisState v. Lewis
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- Before:
- Brachtenbach
Lead Opinion
The defendant was convicted of one count of second-degree perjury and two counts of grand larceny by possession of stolen autоmobiles. He appealed to the Court of Appeals which affirmed the grand larceny convictions, but reversed the perjury conviction. State v. Lewis, 12 Wn. App. 208, 529 P.2d 835 (1974). The State petitioned for review of the reversal of the perjury conviction which is the sole issue here. We reverse the Court of Appeаls and affirm the conviction.
*770From the testimony, the jury could have found that the defendant acquired several stolen cars of a make and model similar or identical to ones which he legally owned. To acquire license plates for the stolen vehicles, defendant would apply for reрlacement plates for vehicles to which he had title. The perjury charge arose from the defendant’s affidavit by which he applied for suсh a set of replacement license plates.
Defendant sought those replacement plates from a local agent who was аuthorized by the State to sell them. The defendant told the agent that a car, which he legally owned, had been wrecked and that the registration and liсense plates were lost. This conversation occurred on a Saturday so the agent advised defendant to return when the county auditor’s offiсe was open so he could obtain necessary information. A short time later the defendant applied to an employee of the state agent for the plates. At that time the defendant signed a form affidavit furnished by the State Department of Motor Vehicles. It was entitled “Affidavit of Loss fоr Tab, License Plate or Registration.” It was signed by defendant. Above his signature appear these words: “I, William B. Lewis, being duly sworn on oath depose and say . . .” The employee later presented the affidavit to the agent, a notary, who was not present when the defendant signed. The employeе advised the notary that it had been signed in her presence and the notary recognized the defendant’s signature. The agent notarized and processed the affidavit. Defendant received replacement plates although the originals in fact were not lost.
The second-degree perjury statute,
Every person who, whether оrally or in writing . . . shall knowingly swear falsely concerning any matter whatsoever, shall be guilty of perjury in the second degree . . .
“Oath” and “swear” are defined in
The term “oath” shall include an affirmation and every other mode authorized by law of attesting the truth of *771that which is stated. A person who shall state any matter under oath shall be deemеd to “swear” thereto.
It is well established that no particular ritualistic form is necessary for one to take an oath. Rather, emphasis is upon some unequivocal act by which a person consciously takes on himself the obligation of an oath. In re Rice, 35 Ill. App. 2d 79, 84, 181 N.E.2d 742 (1962).
We have held that merely signing an affidavit in the presence of a notary or other official authorized to administer oaths is sufficient to constitute the taking of an oath. State v. Douglas, 71 Wn.2d 303, 428 P.2d 535 (1967); State v. Dodd, 193 Wash. 26, 74 P.2d 497 (1937). Authorities to the cоntrary are more stringent and require a formalized oath-taking process. Clearly we have departed from such an approach. O’Reilly v. People, 86 N.Y. 154, 40 Am. R. 525 (1881). The only possible distinction between this case and the Douglas and Dodd holdings is that the affidavit was signed out of the presence of the notary.
However, the legislature hаs declared that irregularity in administering or taking of an oath is no defense to a prosecution for perjury.
It shall be no defense to a prosеcution for perjury that an oath was administered or taken in an irregular manner ... It shall he sufficient that he actually gave such testimony or made such deposition, certificate or affidavit.
(Italics ours.)
Here the defendant signed, in the presence of an employee of the notary, a document entitled an affidavit which affirmatively stated that it was sworn on oath. The dеfendant voluntarily signed that affidavit, knowing.it was to be notarized and processed, all at his request and initiation and for his benefit. The physical absencе of the notary was an irregularity within the statute’s meaning. The signing of the affidavit, under these facts, declaring the defendant to be duly sworn on oath was a sufficiеntly unequivocal act by which the .defendant consciously took upon himself the ob*772ligation of an oath. Obviously the defendant was attesting to the truth of that which he stated within the meaning and intent of
We emphasize that this holding is limited to the matter of a perjury conviction under these facts. It in no manner is concerned with the sufficiency or legal effect of the notarization process for other purposes.
The Court of Appeals is reversеd and the perjury conviction affirmed.
Stafford, C.J., and Finley, Hunter, and Wright, JJ., concur.
Dissenting Opinion
(dissenting) — The majority opinion ignores the plain requirements of our statutes, crеating an oath where there was none and then upholding a perjury conviction for violating it. The respondent was convicted under a statute which makes it a crime to “swear falsely.”
The sole legally authorized method for taking an oath in applications for replacements for lost license plates is established by
shall be subscribed and sworn to before a notary public or other person authorized to certify to statements upon vehicle license applications.
(Italics mine.) The fact that respondent did not follow this procedure compels the conclusion that he took nothing that can be legally construed as an oath. Certainly, the law could have provided that signing the application outside the presence of the notary was equivalent to taking an oath (cf.
As the majority points out, irregularity in the legal form of oath-taking is not a defense to a charge of perjury.
Our law has properly eliminated unnecessary rigidity in the oath-taking element of the crime of perjury, but it has not eliminated the element altogether.
appl[y] only to cases where some oath was administered, but administered in a manner defective in form. It does not crеate the obligation of an oath where it has not been consciously assumed in some form; it cannot cure that which never had life enough to bе sick.
People ex rel. Greene v. Swasey, 122 Misc. 388, 391, 203 N.Y.S. 22 (1924). It does not empower courts to ignore the requirements of the law and create an oath and crime where there was none.
I would follow the courts of Texas (the only jurisdiction in which this precise issue has been addressed) and hold that, where statutes require it, the presence of a legally empowered official is necessary to the creation of a binding oath. Lowry v. State, 297 S.W.2d 848 (Tex. Crim. App. 1956); Sullivan v. First Nat’l Bank, 37 Tex. Civ. App. 228, 83 S.W. 421 (1904). I would therefore affirm the decision of *774the Court of Appeals reversing respondent’s perjury conviction. I dissent.
Rosellini, Hamilton, and Horowitz, JJ., concur with Utter, J.Petition for rehearing denied October 23,1975.