
    Doss vs. Birks.
    Oaths. The practice in this State has been to administer the oath with an uplifted hand and a solemn appeal to God, without inquiry of the witness whether he is conscientiously scrupulous of swearing on the Gospels; and such oath has uniformly been regarded as legal and binding.
    This action for slander was tried by Judge Walker and a jury, in the circuit court of Marshall county. Verdict and judgment for tbe plaintiff, Birks.
    The defendant, Doss, appealed.
    
      Wisener, for plaintiff in error.
    
      Payne and E. & W. F: Cooper, for defendant.
   Green, J.

delivered the opinion of the court.

This is an action for slanderous words. The declaration alleges that tbe defendant Doss said of the plaintiff, while speaking of the trial of the defendant’s slave for insolence, that the plaintiff swore a lie.

On the trial it was proved by the justice, before whom the cause was pending when the oath was taken, that the plaintiff was sworn with an uplifted hand, and that he did not object to being sworn on the Holy Evangelists of Almighty God, nor was he asked whether he had any conscientious scruples as to being sworn on the Holy Evangelists, nor was tbe Testament offered to him upon which to be sworn, nor was it present.

The court charged the jury, that if they believed from the testimony that the defendant’s slave was on trial before the justice for insolence; and that if upon that trial the plaintiff was sworn as a witness and proved the slave guilty of the insolence charged against him; that the justice had jurisdiction to administer the oath ; and that if the plaintiff took the oath with an uplifted hand, it was a legal and binding oath, although tbe Gospel was not tendered to him by the justice to depose upon ; and although the plaintiff might not have conscientious scruples about deposing on the Gospel; and that if the plaintiff deposed falsely to a material fact, the insolence of said slave, he was guilty of perjury, and that perjury could be well and properly assigned upon such oath.

The jury found for the plaintiff three hundred and fifty dollars damages. The defendant moved for a new trial, which was refused, and he appealed to this court.

We think the instructions of the court to the jury were in all things correct.

The supreme court of North Carolina, in the case of The State vs. Whisenhurst, 2 Hawks. R., 458, decided, that should a party be sworn with uplifted hand, though not conscientiously scrupulous of swearing on the Gospels, and depose falsely, he is guilty of perjury.

In Wharton’s American Crim. L., 473, it is said, “ When a witness comes to be sworn, it is so presumed that he has settled the point with himself in what way he will be sworn, and he should make it known to the court; and should he be sworn with uplifted hands, though not conscientiously opposed to swearing on the Gospel, and depose falsely, he subjects himself to the pains and penalties of perjury.” See also Com. vs. Knight, 12 Mass. R., 274; Campbell vs. People, 8 Wend. 636.

The practice in this State has been to administer the oath with an uplifted hand and solemn appeal to God, without inquiry of the witness whether he is conscientiously scrupulous of swearing on the Gospels; and such oath has uniformly been regarded as legal and binding.

There is no error in the charge of the court, and the judgment is affirmed.  