Again: "Before said coroner and jury of inquest, upon his oath aforesaid." And again: "That, in manner and form as aforesaid, the said Harrison Stewart, did then and there, willfully, deliberately, and felon- · iously, commit the crime of perjury," etc. Nowhere in the indictment is the officer before whom the oath was taken characterized otherwise than as coroner.

Under our law as it now exists, and, indeed, since the adoption of the Constitution of 1869, no such office, separate, distinct, and specific as that of coroner eo nomine, has been or is known to our system.1 In the present Constitution there is no mention made of such an officer. We find, however, in the General Laws of the Fifteenth Legislature,2 that "justices of the peace shall be commissioned by the Governor to act as justices of the peace in their respective precincts, and also to act as notaries public. They shall also discharge all the duties of coroner, except such as devolve upon constables, by section twenty-one of the Constitution."

Mr. Bishop, in his invaluable work on Criminal Procedure, lays down the general rule with regard to allegations in the indictment descriptive of the court, etc., in which the crime of perjury is charged to have been committed, as follows: "The name of the court must be stated correctly, as known in law. Thus, where by the statute, it was termed • Court of Pleas and Quarter Sessions,' and the indictment used the words, 'A certain Superior Court, begun and holden for the District of Hillsborough,' the variance was held fatal."'3

In Maine, it is held “that an indictment for perjury is fatally defective from which it does not appear with certainty that, at the time the offense was charged, the tribunal which administered the oath, and before which the testimony was given, had jurisdiction of the matter then on trial. 4

In North Carolina, it was held that, in an indictment for perjury, the court before which the perjury is alleged to have been committed must be legally set forth.5

And so in Illinois, Indiana, and New Jersey it is held that, to authorize a conviction for perjury, it is requisite to allege and prove that the person before whom the oath was taken was authorized by law to administer it.6

"The

Mr. Wharton, in his standard work on Criminal Law, says: right of the officer to administer the oath must be shown by specific

1 Const. 1869, art. 5, sec. 20; 2 Pasc. Dig.,

art. 6382.

2 p. 165, sec. 28.

8 2 Bish. Cr. Proc. (2d ed.), sec. 910.

4 State v. Plummer, 50 Me. 217.

State v. Street, 1 Murph. 156.

Morrell v. People, 32 Ill. 499; McGregor

v. State, 1 Ind. 232; State v. Dayton, 23 N. J. L. 49.

averment, it not being enough generally to state that he was competent for that purpose; and the style of the court must be legally set out, but it is sufficiently described by words which can not apply to any other court." 1

An indictment based upon an oath administered without authority of law is fatally defective, and should be quashed.2

The allegation in the indictment, to have been sufficient, should have alleged substantially that T. O. Hynes was a justice of the peace of Washington County, and that, at the time he administered the oath to defendant which is assigned as perjury, he, as said justice of the peace, was acting in the discharge of the duties of a coroner in said county. Had his authority been thus clearly asserted, the allegation would have been sufficient upon that point, without setting out the various facts which conferred the authority, such as his election, qualification, commission, or how his jurisdiction further attached in the case; it being sufficient, as to his authority to administer the oath, to allege that he was a justice of the peace, and, in his discharge of the duties of a coroner, had jurisdiction of the matter under investigation.3

Because the indictment in this case does not allege or show that the oath assigned as perjury was administered by competent authority, or by any officer authorized by the laws of this State, the judgment of the court below must not only be reversed, but, because said indictment is fatally defective, the case is also dismissed.

Reversed and dismissed.

PERJURY-OFFICER ADMINISTERING OATH MUST HAVE AUTHORITY.

BIGGERSTAFF v. COMMONWEALTH.

[11 Bush, 169.]

In the Court of Appeals of Kentucky.

One who Swears Falsely as to his age before an election officer, is not guilty of perjury if the officer himself had not been sworn as required by law.

LINDSAY, J. This prosecution was based upon the fourteenth section of the twelfth article of chapter 32 of the Revised Statutes which are in these words: "Any person who shall make any willfully false statement

13 Whart. Cr. L. (6th ed.), secs. 2244, 2245. 2 State v. Powell, 28 Tex. 627.

3 State v. Peters, 42 Tex. 7; State v. Marshall, 47 Me. 378; State v. Stillman, 7 Cold.

under an oath duly administered at an election shall be deemed guilty of perjury, and incur the penalty for that crime." The indictment charges that the accused, on the 23d day of December, 1872, in the county of Madison, falsely and corruptly swore that he was twenty-one years of age, when, in point of fact, he was not that old, and knew at the time he was not; and that he so swore in order to procure the right to vote; and that by means of said oath he succeeded in being allowed to vote in an election then being held for sheriff of said county. It is further charged that said oath was duly administered by the officer and judge of said election." Appellant demurred to the indictment, but his demurrer was overruled. He was then tried and convicted, and sent to one year's confinement in the State penitentiary. To reverse the judg ment of the Circuit Court he prosecutes this appeal. It was proved on the trial, by D. B. Willis, that he acted as one of the judges of the election, and that he administered the oath which appellant is charged to have falsely and corruptly taken. He proves, further, that he (Willis) did not take the oath prescribed by law for judges of election, and that he was acting, at the time appellant was sworn, as a judge of the election, without having taken such an oath. Upon this evidence the accused asked the court to give the following instruction: "If the jury believe, from the evidence, that the defendant was sworn by D. B. Willis only as a judge of the election, and that Willis, as such judge, had never been sworn to perform his duties, then they should find the defendant not guilty."

It appears that Willis was, at the time, a justice of the peace; but as section 7 of article 3, chapter 32 of the Revised Statutes provides that oaths, which persons offering to vote at elections held under the provisions of that chpter may be required to take, shall be administered by one of the judges or by the clerk of election, he had no power or authority, as justice of the peace, to administer the oath to the accused; and the necessary and legal presumption is, in administering said oath, he acted in the capacity of judge of election.

Section 4 of the chapter and article in question provides that " each judge and clerk of an election shall, before entering on the duties of his office, take the oath prescribed by the Constitution before some justice of the peace or it may be administered by the sheriff."

If Willis assumed to act, without taking the oath, he was, at most, but an officer de facto. To what extent his acts would be upheld, in order to protect and preserve the rights of legal voters, voting at the elections, in controversies between rival candidates for office, we will not undertake in this case to determine. The question here is, whether Willis was authorized by law to administer the oath to the ac

cused. If he was not so authorized, it would seem to follow that the judgment of the Circuit Court can not be sustained.

No oath taken before "those who take upon them to administer oaths of a public nature without legal authority

can ever amount

to perjury in the eye of the law, for they are of no manner of force." 1

Where oaths are administered in a regularly organized court, and it appears, prima facie, that the judge, magistrate or officer before whom the oath was taken was de facto in the ordinary exercise of his office, the burden is devolved upon the prisoner of showing the want of proper legal authority. But this rule is applicable only to public functionaries; and where the authority to administer the oath was derived from a special commission, or where it is delegated to be exercised only under particular circumstances, the commission, in the one case, or the existence of the essential circumstances in the other, must be distinctly proved.2

At the common law the authority of the officer administering the oath was always open to inquiry. The existence of that rule was recognized and continued in force by the Revised Statutes,3 which provided "that if any person, in any matter which is or may be judicially pending, or any subject in which he can be legally sworn, or in which he is required to be sworn, when sworn by a person authorized by law to administer an oath, shall willfully and knowingly swear, depose, or give in evidence that which is untrue and false, he shall be confined in the penitentiary," etc.

An essential and prerequisite to the establishment of the guilt of the accused is, that the oath shall have been administered "by a person authorized by law to administer an oath." If Willis did not take the prescribed oath of office, he was not authorized by law to act as a judge of the election, and could not therefore have been authorized to administer such oaths as the laws make it the duty of the judges and clerks of election to administer.

The rule founded upon public policy, which requires the acts of də facto officers to be treated for many purposes as valid and binding, does not apply when an oath administered by such an officer is made the foundation of a prosecution for perjury.

From these conclusions it follows that the instructions under consideration should have been given. As we have no power to reverse for an error of the Circuit Court, in overruling a demurrer to an indictment, we will not inquire as to the sufficiency of the indictment in this case.

1 Rosc. Cr. Ev., sec. 674; 2 Russ. 521; 1 Hawk. P. C., ch. 69, sec. 4; 3 Camp. 432. 23 Greenl. on Ev., sec. 190.

3 Sec. 2, Art. 8, ch. on "Crimes and Punishments."

Nor do we deem it necessary to advert to other supposed errors to which our attention was called in the argument.

For the error in refusing to give the instructions heretofore set out in full, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

PERJURY- MATERIALITY OF EVIDENCE ESSENTIAL.

STATE v. HATTAWAY.

[2 N. & McC. 118; 10 Am. Dec. 580.]

In the Constitutional Court of South Carolina, May, 1818.

1. Perjury-Materiality of Testimony. - To constitute perjury, the matters sworn to must be material to the issue; and although the particular fact as to which the witness is alleged to have sworn falsely need not be material per se, it must have a direct and immediate connection with some material fact, so as to give weight to the testimony. 2. Where a Witness Swore to a particular fact which was material and that he was present when it occurred and afterwards when asked where he lived at the time, testiffed that he lived near the parties, which was proved to be false, it was held that this was too remote from the issue to constitute perjury.

Indictment for perjury. The facts were: One Shackleford having been indicted for stealing a cow and afterwards discharged, brought an action against the prosecutor for malicious prosecution. In this action Hattaway was called as a witness, and testified that Shackleford purchased the cow in question from one Carter and that he was present at the time. Being asked where he lived at the time he said, "near Carter's, perhaps within a hundred yards," whereas it was proved that he did not live in the State. The perjury assigned was his false testimony as to where he lived. NOTT, J., instructed the jury that the testimony was not material so as to constitute perjury, but the jury thought otherwise and found the defendant guilty. The prisoner then moved to set aside the verdict as contrary to law.

R. A. Taylor, for the motion.

Evans, contra.

By the Court, NOTT, J. It seems to be agreed by all the writers on criminal law, that one ingredient in the crime of perjury is that the oath relates to some material matter to the question in issue.1 There can be no doubt but that an extra-judicial oath or one relating to a matter utterly immaterial, or even an impious oath, taken in idle conversation,

1 Bla. Com. 437, 138; R. v. Aylett, 1 L. B. 69.