
    Staight v. The State.
    Where an application for a marriage license is made to a deputy clerk of the probate court who is holding, without a new appointment, during a second term of the judge appointing him, and such deputy administers an oath to the applicant and examines him as to the right of the parties to such license, a prosecution for perjury cannot be maintained against such applicant, based on such testimony, for the reasqn that the oath is not administered by lawful authority.
    Error to the Court of Common Pleas of Logan county.
    Staight was indicted in the court of common pleas of Logan county for perjury. It was proved that he made application for a marriage license, in Logan county, on December 2, 1882, and testified as to the ages of the parties to the contemplated marriage, and residence of the female, and the alleged perjury was in the testimony so given. The oath was administered by L. E. Pettit, to whom the application was made. In 1878, R. E. Pettit was elected and duly qualified as probate judge of Logan county. He was re-elected in 1881, and on February 6,1882, entered on his second term, after being duly qualified, and he continues to be such jrjj^e. Evidence was given on the trial tending to show ^ait on December 8, 1879, R. E. Pettit duly appointee, deputy clerk of the probate court, L. E. Pettit, who, being duly qualified, entered on the duties of the appointment, and he has acted as such deputy continuously ever since that time, under the original appointment, and that he was not re-ap-. pointed when .R. E. Pettit entered upon his second term of office, nor since. Staight asked the court to charge the jury, that if they should find the facts to be as above stated, he could not be convicted, but the court refused so to charge, and he excepted. The jury having returned'a verdict of guilty, he was sentenced to the penitentiary, and the sole question on this petition in error is whether the court erred in refusing so to charge.
    
      The Revised Statutes provide as follows :
    “ § 533. Each judge shall have the care and custody of all files, papers, books, and records belonging to the probate office, and is authorized and empowered to perform the duties of clerk of his own court; and each probate judge may appoint a deputy clerk or clerks, each of whom shall, before entering upon the duties of his appointment, take an oath of office, and when so qualified, such deputy may perform any and all the duties appertaining to- the office of clerk of the court; and each deputy >clerk is authorized to administer oaths in all cases in which it is necessary, in the discharge of his duties as such deputy clerk.” And see §§2, 10, 4949.
    “ § 6897. Whoever, either verbally or in writing, on oath lawfully administered, willfully and corruptly states a falsehood, as to any material matter, in a proceeding before any court, tribunal or officer created by law, or in any matter in relation to which an oath is authorized by law, is guilty of perjury, and shall be imprisoned in the penitentiary uot more than ten nor less than three years.”
    
      “ § 7221. In an indictment for perjury, or for subornation of perjury, it shall be sufficient to set forth the substance of the offense charged, and before what court or authority the oath was taken, averring such court or authority to have full power to administer the oath, together with the proper averments to falsify the matters wherein the perjury is assigned, without setting forth any part of any record or proceeding; or the commission or authority of the court, or other authority, before which the perjury wás committed.”
    
      William Lawrence, Joseph LI. Lawrence, and J. A. Huston, for plaintiff in error :
    In addition to cases cited in the opinion, counsel cited on the question presented the following, Const. art. 15, § 7; 3 Inst. 165 ; 1 Hawk. P. C. 431; 2 Hawk. P. C. 86; Mahan v. Berry, 5 Mo. 21; State v. McCollister, 11 Ohio, 46; State v. Corey, 4 West. L. Mo. 563 ; s. c., 16 Ohio St. 17, 35 ; Wharton’s Cr. Ev. § 1315; 3 Lawrence’s Compt. Dec. 60 ; 1 Op. Atty. Glen. 670; 7 Id. 597 ; Chapman v. Inhabitants, 56 Maine, 390; State v. Kennon, 7 Ohio St. 558 ; People v. White, 24 Wend. 539.
    
      D. A. Hollingsworth, Attorney-General, for the state.
   Okey, J.

Proof by the state that L. E. Pettit was, at the time he administered the oath in question, acting as deputy clerk of the probate court, and had acted in that capacity about three years, with the assent of the probate judge and the acquiescence of the public, was prima facie sufficient to show that the oath was lawfully administered. R. v. Roberts, 38 L. T. (N. S.) 690 ; s. c., 14 Cox C. C. 101; Keator v. People, 32 Mich. 487. The general rule is that as to third persons and the public, the acts of one thus performing service are in all respects as valid as acts done by an officer de jure. Strang, ex parte, 21 Ohio St. 610; Cf. Bernier v. Becker, 37 Ohio St. 72; Munford v. Rice, 6 Munf. 81. But in prosecutions like this the rule is different. Notwithstanding the prima facie proof offered by the state, the accused had the right to show that L. E. Pettit was not ah office]- de jure, and so defeat the prosecution. This was held in the leading case of R. v. Verelst, 3 Campb. 432 (1813), where the person administering the oath had been an officer de facto for twenty years, and that case has been repeatedly followed in England and this country. R. v. Roberts, supra; R. v. Newton, 1 C. & K. 469; State v. Hayward, 1 Nott & M. 546; Muir v. State, 8 Blackf. 154; State v. Hascall, 6 N. H. 352; Biggerstaff v. Com., 11 Bush, 169 ; Lambert v. The People, 76 N. Y. 220; 3 Russ. Cr. 89 ; Ros. Cr. Ev. 815; 2 Bishop’s Or. L. § 1020. In Stephens v. State, 1 Swan, 157, as in Oaks v. Rogers, 48 Cal. 197, administering the oath in open court, by one not an officer, was regarded as the act of the court which directed it to be administered, and hence that case is not in conflict with the rule as stated.

In Warwick v. State, 25 Ohio St. 21, it was held that a deputy clerk of the probate court need not be an elector; but there the deputy had ■ been regularly appointed and qualified, hence was a deputy clerk de jxore, and therefore qualified to administer an oatb like that in question here ; for the act was ministerial, and a deputy may perform any duty with respect to granting and issuing the license even in his own name (Walke v. Circleville, Chapin v. Allison, 15 Ohio, 288, 566), though regularly such acts should be done in the name of the principal. Here evidence was offered to show that L. E. Pettit was not a deputy clerk de jure, but the court said the evidence was immaterial, and therein erred.

Judgment reversed.  