
    O’REILLY v. PEOPLE.
    [Reversing 9 Abb. N. C. 83.]
    
      N. Y. Court of Appeals,
    October, 1881.
    PbIIJUBY.—COMHISSIOiXEB OF DEEDS.—OATH.
    To make a valid oath, for the falsity of which an indictment for perjury will lie, there must be, in some fprm, in the presence of an officer authorized to administer the oath, an unequivocal and present act by which the affiant takes upon himself the obligation of an oath.
    The silent delivery of a signed affidavit to the officer, who thereupon signs the jurat, is not sufficient for this purpose; and is not made so by the intention of the one party or the supposition of the other.
    
    Cornelius O’Reilly, having been convicted of perjury (see proceedings reported under the name of People v. O’Reilly, 9 Abb. W. C. 77, 83, 85), brought a writ of error to review the conviction.
    The evidence on the part of the people as to the oath having been administered by the commissioner of deeds was the testimony of that officer; and it was shown on the part of the defense that- nothing was said either by the commissioner or the prisoner upon the subject of an oath, and the only formalities were a signature on the part of the prisoner and a signature on the part of the commissioner to a paper which recited that the prisoner “being duly sworn, saith,” &c.
    
      R. W. Peclcham (.Martin I). Conway, attorney), for the plaintiff in error,
    Cited: 1 Phil. on Ev. (C. & H. and Edwards’ Notes) 15, 17, 18; 1 Greenleaf on Ev. §§ 328, 371; Tyler on Oaths, 15; 1 Best on Ev. §§ 56, 58, 162, 163; 1 Starkie on Ev. 23, 24; 3 Whart. Am. Cr. Law, § 2205; Tuttle v. People, 36 N. Y. 431; Campbell v. People, 8 Wend. 636; 2 Bish. Cr. Law, § 1018; Ashburn v. State, 15 Ga. 246; State v. Trask, 42 Vt. 152; 1 Allison Cr. Law, 474; Jackson v. State 1 Ind. 184; State v. Norris, 9 N. H. 96; 1 Arch. Cr. Pr. & Pl. 487, 491; 2 R. S. 407, § 82; Maher v. State, 3 Minn. 444; Code Civ. Pro. 845 et seq.; Bac. Abr. tit. “Affidavit; ” Millius v. Shafer, 3 Den. 60; Case v. People, 76 N. Y. 242; S. C. more fully, 6 Abb. N.C. 151; Half v. Spicer, 3 Cai. 190; Jackson v. Virgil, 3 Johns. 540; People ex rel. Kenyon v. Sutherland, 81 N. Y. 1; 1 Hale P. C. 34; Cowley v. People, 83 N. Y. 464; People v. Cook, 8 N. Y. 67, 84; Rex v. Crossiey, 7 T. R. 315; Bac. Abr. tit. “Perjury,” B.
    
      D. Cady Ilerriclt, district attorney, for the people.
    
      
      As affidavits are so frequently authenticated in this loose manner, it may be of interest to inquire whether, in case of falsity of an affidavit used to obtain a civil remedy, there is any other remedy than indictment.
      As to proceedings for contempt, see Code Civ. Pro. §§ .8, 14; Matter of Stacy, 10 Johns. 328; Boncsteel v. Lynde, 8 How. Pr. 226; Yates v. Lansing, 9 Johns. 395; affirming 5 Id,. 282, and Yates v. People, 6 Id. 337; rcv’g Matter of Yates, 4 Id. 317; art. on Contempt, 20 Am. Law Reg. N. S. 84; Wilmerdings v. Fowler, 14 Abb. Pr. N. S. 249; affi’g Fowler v. Lowenstein, 7 Lans. 167; and see further proceedings in that case in 15 Abb. Pr. N. S. 86.
      As to whether fraud or perjury in obtaining a decision is a ground of action, see also Stilwell v. Carpenter, 2 Abb. N. C. 238, and cases cited in 1 Abb. N. C. 232.
    
   Finch, J.

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 judge who presided at the trial, and, 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’Beilly 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 intended" 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 credit 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 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 Inst. 165; 1 Phil. on Ev. 15; 1 Starkie on Ev. 23; Lord Hardwicke in Omychund v. Barker, 1 Atk. 20; Tyler on Oaths, 15; 1 Greenl. on Ev. 328, 371; 1 Alison Crim. Law, 474; 3 Whart. 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 the Deity, and the Gen too kneel before his Brahmin priest with peculiar ceremonies, yet through all changes and under all forms, the religious element has not been utterly destroyed. As lately as the case of People ex rel. Kenyon v. Sutherland (81 N. Y. 1), the taking of an oath is described as burdening the conscience. Some form of an oath would therefore seem to 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 one statute (3 R. S. 5 ed. p. 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 (§ 113). Then follow the exceptions. There were persons who, on the one hand, were unwilling to invoke either the vengeance or the help of the divine blessing, and those who believed in them without believing in the Gospels or even in the Bible at all. The statute, therefore, merely 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 be sworn at all. To meet that emergency the statute allows as a form: “You do solemnly, sincerely and truly declare and affirm” (§ 116). Then follow provisions to meet the cases of persons who have peculiar forms which they recognize as obligatory, and believe in other than the Christian religion. Such persons may be sworn in their own manner, according to the peculiar ceremonies of the religion which they profess (§§ 117, 118). There remained, however, the case of infidels and unbelievers. For them there could be no religious element in an oath, and no sincerity 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 injury, 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, 8 N. Y. 67, 84). A wide scope, a large liberty, is thus given to the form of the oath, but some form remains essential. Something must be present to distinguish between the oath and the bare assertion. An act must be done, and clothed in such form as to characterize and evidence it.

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 trial, seem to us fairly to justify the criticism.

The only act referred to is the delivery of the bill 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 affidavit does verify the statement he has subscribed, and the officer regards 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, with other parts of the charge which more fully explain its meaning. Thus construed, it rests on something more than 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 prisoner signed and handed to the officer. That language was as follows : “C. 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 wrell 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 constitute 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. People (76 N. Y. 242). In that case the accused signed the, jurat, and sent it to the notary for his signature. The delivery to the officer was a delivery by Case, although effected through the agency of a third person. That fact cannot change or modify the principle, as it affects the affiant. It might and would touch and influence the duty of the officer in giving his certificate. But the certificate is not the oath. It pre-supposes an oath already taken, of which fact it but furnishes the evidence. It is the written word signed and consciously and purposely delivered to the officer which works the result. It is that delivery which converts the previously unsworn words into a valid affidavit. How is the inherent character of the affiant’s act in'anywise changed, modified or altered by such delivery through an agent instead of in person? The difference suggested to us is that in the latter case the officer and the affiant do not meet, and the oath is not taken before, that is, in the presence of the officer. While that fact is mentioned in the opinion, it is not made the definite ground of the decision, which takes a much wider range, and goes upon the theory that no oath was taken at all. The fundamental difficulty, whether the affidavit be delivered in either mode, seems to us to be that the act of delivery is equivocal; and just as consistent with an intention not to swear, though appearing to have been sworn, as with an intention to assume the obligation of an oath ; and this difficulty is intensified when, as in the present case, the language written and signed and delivered to the officer is not “I do hereby swear,” or “ do depose and say,” but “being duly sworn, saith.” The language recites an oath previously taken, already administered. It does not purport to be the present oath then and there taken. It confesses a past act, and an obligation already assumed. It does not profess to be itself the act or obligation. Such a construction of it is strained and unnatural. It would be hard to find an officer who would understand upon reading such phrase that an oath had already been administered by himself, and his sole duty was to certify the fact in silence ; and we are required to believe that officers have been daily administering a second and superfluous oath when a sufficient one was already before them in writing. We think the charge went too far, and are not ready to affirm the proposition advanced. To make a valid oath for the falsity of which perjury will lie, there must be, in some form, in the presence of an officer authorized to administer it, an unequivocal and present act by which the affiant consciously -takes upon himself the obligation of an oath. The delivery in this case of the signed affidavit to the officer was not such an act, and was not made so by the intention of one party or the supposition of the other.

For these reasons, the judgment should be reversed and a new trial granted.  