| Ala. | Nov 15, 1894
This is a prosecution for perjury. The indictment contains two counts each charging that Walker made a false affidavit on an application • for a new trial of a cause before the circuit court of Montgomery county, in which he was a party, and which had been tried and decided against him. In the first count it is alleged that Walker was duly sworn “by the clerk of said circuit court, who had authority to administer said oath.” In the second count, the averment is that the oath was administered ‘ ‘by Elbert Holt, who was the, duly and regularly appointed deputy clerk of said circuit court, and who had authority to administer such oath.” The evidence showed that the oath was in fact administered by said Elbert Holt, but in the presence and to the knowledge of E. R. Holt, the clerk of the court, and the affidavit purports on its face to have been made before E. R. Holt as such clerk, and to the jurat is signed the name of E. R. Holt, clerk. Elbert Holt was at the time acting as deputy clerk of the court under claim and color of authority, having been appointed to that position by the clerk, but he had never been qualified as such deputy by taking the oath required by statute. Code, § 767.
On these facts Elbert Holt was a do facto, but not a dejure officer, and while his acts in his assumed official capacity would, on grounds of public policy, be held to be valid and efficacious upon collateral attack, and when the rights of third persons depended upon their practical validity; yet he was not “duly authorized” to perform any official duty, or do any official act; his alleged administration of the oath to the defendant as deputy clerk of the court was without authority of law, and perjury cannot be assigned upon it. 18 Am. & Eng. Ency. of Law, p. 304; Rex v. Verst, 3 Camp. 432; Biggerstaff v. Commonwealth, 11 Bush, (Ky.) 199; Muir v. State, 8 Blackf. (Ind.) 154. Code § 3903.
But it does not follow that there could be no conviction here, or that the trial court erred in any of its rulings pertaining to this part of the case. The evidence, as we have seen, shows that whiie Elbert Holt in point of actual physical fact administered the oath to the defendant E. R. Holt, the clerk, was present at the time, knew what was going on, and directed or assented to the administering of the oath which was done in his name
The oath alleged to have been falsely made by the defendant was to the effect that he had not signed a certain conveyance of land. It was essential to the materiality of this oath that it should be made to appear that this instrument was, if signed at all by the defendant, executed with the formalities required by the statute. To this end it was entirely proper, for the purpose of showing the attestation of two witnesses thereto for the State to prove that one of the persons whose name was appended in that capacity was dead and that the subscription was in the handwriting of the dead witness. But this was the extent to which this evidence could be looked to in the case — to show, assuming defendant had signed, that the instrument was executed with the statutory attestation necessary to a valid conveyance of land. It could not be looked to on the question whether in point of fact the defendant had signed his name to the instrument; upon this question he was entitled to be confronted by the witnesses against him and not be prejudiced by evidence that the paper bore the names as attesting witnesses of persons who are not examined on the trial. The court should, therefore, have given the 6th instruction requested by the defendant which was in the following language : “The evidence introduced by the State of the genuineness of the signature of Workman (the attesting witness who had died) as a witness found on the mortgage can not be considered by the jury as evidence of the fact that the defendant signed said mortgage.” For the error committed in the refusal of this instruction, the judgment must be reversed. The cause will be remanded.