
    The State of Ohio v. Townley.
    
      Court has inherent power to administer oaths — May he administered hy deputy cleric, when.
    
    1. A court has inherent power to administer oaths on the trial of cases, without an express provision therefor by statute.
    2. An indictment for perjury which charges that the oath was administered in open court by a deputy clerk, should be sustained when the evidence shows that the oath was administered in open court by one who was performing the duties of a deputy clerk.
    (Decided October 14, 1902.)
    Exceptions to the Court of Common Pleas of Marion county.
    Richard Towmley w-as indicted at the September term of the court of common pleas of Marion county, for perjury. The indictment charged that Towmley “on or about the twmnty-second day of December, in the year of our Lord one thousand eight hundred and ninety-nine, with force and arms, in said county of' Marion, and state of Ohio, then and there being, in a certain petition for divorce, and cause then pending' in the court of common pleas, within and for said county of Marión, wEerein the said Richard Towmley was complainant, and one Alice Towmley was defendant, did appear in said court, which was then and there open for the transaction of business, and was then and there solemnly sworn in said open court by M. Waddel, clerk of said court, by W. H. Folk, deputy of said M. Waddel, clerk as aforesaid, who then and there was duly empowered and authorized by law as such clerk, and by said deputy, to administer said oath, and so being sworn then and there in the said petition and cause and in a matter material thereto, did corruptly and willfully depose and declare certain matters then and there to be facts, to-wit,” etc. On the trial of Townley upon this indictment, after the state had presented its evidence and rested its case, and after the defendant had presented his evidence, the defendant moved to arrest the testimony from the jury and direct the jury to return a verdict of not guilty, for the following reasons:
    “First — Because the evidence offered by the state of Ohio is insufficient to sustain the allegations of the first count of the indictment herein.
    “Second — Because the evidence offered by the state of Ohio shows that William H. Folk, deputy clerk of M. Waddel, clerk of the court of common pleas of Marion county, Ohio, had no right or authority under the laws of the state of Ohio to administer the oath set out and referred to in said first count of said in- . dictment herein.
    “Third — Because the evidence fails to show that an -oath is lawfully administered in said proceedings set out in said first count of said indictment herein to said defendant.”
    The court* sustained this motion and directed the jury to retire to their room and return a verdict finding the prisoner not guilty, which the jury accordingly did do; and the defendant was, thereupon, discharged.
    
      To flie ruling of tlie court directing the jury to return a verdict of not guilty and sustaining the motion of the defendant to arrest the testimony from the .jury and discharging the defendánt, the state, by the prosecuting attorney, excepted. Motion for new trial was filed and overruled, and a bill of exceptions signed, allowed and made part of the record.
    
      Mr. Fred E. Guthery, prosecuting attorney, for plaintiff in error, cited and commented upon the following authorities:
    
      State v. McCracken, 51 Ohio St., 123; State v. Commissioners, 58 Ohio St., 384; 2 Bouvier’s Law Dic., 237; Anderson’s Law Dic., 677; Staight v. State, 39 Ohio St., 496; State v. Barbee, 45 Ohio St., 347; State v. Taylor, 15 Ohio St., 137; State v. Brewster, 44 Ohio St., 589; Robbins v. Commissioners, 1 Circ. Dec., 340; 2 C. C. R., 23; Sutherland Stat. Const., Sec. 447; Black on Interpretation of Laws, Sec. 127; Oaks v. Rodgers, 48 Cal., 197; Stephens v. State, 31 Tenn. (1 Swan), 157; Keator v. People, 32 Mich., 484; 2 McClain’s Crim. Law, Secs. 855, 856; State v. Dreifus, 38 La. Ann., 877; Izer v. State, 77 Md., 110; Carleton v. People, 10 Mich., 250; State v. Carroll, 38 Conn., 449; State v. Speaks, 95 N. C., 689; Rex v. Verelst, 3 Camp., 432; State v. Hall, 7 Blackf. (Ind.), 25; Smith v. State, 31 Tex. Crim. Rep., 315; Clark v. Commonwealth, 29 Pa. St., 129; State v. Neil, 7 Ohio (pt. 1), 132; State v. Harris, 17 Ohio St., 608; Upington v. Oviatt, 24 Ohio St., 232; Bainbridge v. State, 30 Ohio St., 264; Duke v. State, 20 Ohio St., 225; Stem v. Cincinnati, 9 Dec., 45; 6 N. P., 15; State v. Caywood, 96 Ia., 367; Masterson v. State, 144 Ind., 240; Server v. State, 2 Blackf. (Ind.), 35; State v. Knight, 84 N. C., 793; Walker v. State, 18 Smith Rep., 393; 2 Wharton’s Crim. Law (9 ed.), Secs. 1287-1315; People v. Nolte, 19 Miscel. (N. Y. Sup.), 674; 18 Am. & Eng. Ency. Law, 304; 2 Bishop’s New Crim. Law, 1020; Rowland v. Thompson, 65 N. C., 110; 2 Wharton’s Crim. Law, Sec. 1315; Warwick v. State, 25 Ohio St., 21; Underhill on Crim. Ev., 45; State v. Thomas, 58 Kan., 805; Spalding v. People,, 172 Ill., 40; State v. Forrester, 63 Mo. App., 530; State v. Hobbs, 37 W. Va., 812; State v. McGinnis,, 2 West., 140; State v. McKay, 2 West., 543; State v. Bucher, 2 West., 544; State v. Roach, 64 Mo. App., 413; People v. Loui Tung, 90 Cal., 377; State v. Farley, 53 N. W. Rep., 1089; Harris Crim. Law, 313; Price v. State, 19 Ohio, 423; Mitchell v State, 42 Ohio St., 383; Clark’s Crim. Law, 376.
    
      Mr. G. E. Mouser, for defendant in error, cited and commented upon the following authorities:
    
      People v. Murray, 70 N. Y., 521; Johnston v. Wilson, 2 N. H., 202; Smith v. Cansler, 83 Ky., 367;, Greenwood v. State, 17 Ark., 332; Banner v. McMurray, 1 Dev. L. (N. C.), 218 ; Boardman v. Halliday, 10 Paige (N. Y.), 223; Morrel v. People, 32 Ill., 499; Commonwealth v. Hughes, 87 Mass. (5 Allen), 499; Renew v. State, 79 Ga., 162; Territory v. Anderson, 21 Pac. Rep., 417; State v. Wilson, 87 Tenn., 693;. Hamm v. Wickline, 26 Ohio St., 81; McGragor v. State, 1 Ind., 232; State v. Dayton, 23 N. J. L., 49; State v. Cannon, 79 Mo., 343; Biggerstaff v. Commonwealth, 11 Bush (Ky.), 69; State v. Phippen, 62 Ia., 54; Lambert v. People, 76 N. Y., 220; State v. Knight,, 84 N. C., 789; People v. Albertson, 8 How. Pr. (N. Y.), 363; Muir v. State, 8 Blackf. (Ind.), 154; Rex v. Verelst, 3 Camp., 432; State v. Gardner, 54 Ohio St., 24; Throop on Public Officers, Sec. 623; Mechem on Public Officers, Sec. 321; McCraw v. Williams, 33 Gratt. (Va.), 510; Plymouth v. Painter, 17 Conn., 585; State v. Carroll, 38 Conn., 449; Hooper v. Goodwin, 48 Me., 79; Hamlin v. Kassafer, 15 Ore., 456; Bailey v. Fisher, 38 Ia., 229; Tucker v. Aiken, 7 N. H., 113; Clark v. Commonwealth, 29 Pa. St., 129; Harte v. Bode, 7 Dec. 74; 4 N. P., 421; State v. Commissioners, 58 Ohio St., 384; Silver v. State, 17 Ohio, 365; State v. McGinnis, 74 Mo., 245; Dyer v. State, 74 Ind., 594; Harlan v. State, 134 Ind., 339; State v. Hobbs, 37 W. Va., 812; Randolph v. State, 100 Ala., 139; Berry v. State, 92 Ga., 47; 17 S. E. Rep., 1006; Frazier v. State, 56 Ark., 242; Jackson v. People, 40 Ill., 405; Wiles v. State, 33 Ind., 206; Deck v. State, 47 Ind., 245; Luck v. State, 96 Ind., 16; Ryan v. State, 22 Tex. App., 699; Williams v. State, 21 Tex. App., 256; Shelton v. State, 27 Tex. App., 443; State v. Mills, 33 W. Va., 455; Leslie v. State, 35 Fla., 184; 17 So. Rep., 559; Pickerel v. Commonwealth, 30 S. W. Rep., 617 (Ky.); People v. Etting, 99 Cal., 577; 34 Pac. Rep., 237; People v. Curley, 99 Mich., 238; 58 N. W. Rep., 68; State v. Farley, 87 Ia., 22; 53 N. W. Rep., 1089; Sullivan v. People, 114 Ill., 24; Sec. 7362, Rev. Stat.; State v. Knight, 54 Ohio St., 330; Gravatt v. State, 25 Ohio St., 162; Norris v. State, 25 Ohio St., 217; State v. Bailey, 50 Ohio St., 636; Underhill on Crim. Ev., 46; 1 Bishop’s New Crim. Pro., Sec. 384; Rowland v. Thompson, 65 N. C., 110; Keator v. People, 32 Mich., 484; State v. Caywood, 96 Ia., 367; Server v. State, 2 Blackf. (Ind.), 35; State v. Hall, 7 Blackf. (Ind.), 25; Masterson v. State, 144 Ind., 240; State v. Speaks, 95 N. C., 689; Smith v. State, 31 Tex. Crim. Rep., 315; State v. Dreifus, 38 Ia. Ann. 877; Izer v. State, 77 Md., 110.
   Davis, J.

It is clearly established by the testimony shown in the record in this case that the oath usually administered to- witnesses was administered to the person charged with perjury in this indictment; that tire oath was administered in open court upon the trial of a case in the county of Marion; that the testimony given by the accused under the sanction of that oath was false; that the oath was administered by one W. H. Folk, acting as deputy clerk of the court; and (that said Folk was not deputy clerk de jure. Whether or not Folk was deputy clerk de facto is perhaps a debatable question; but it is one which we do not find it necessary to decide. He had been duly appointed to the office or public trust of deputy clerk, if it is an office or public trust, and continued therein without having been discharged by the officer appointing him, at any time during the first or second term of the latter. Sections 8 and 9, Revised Statutes. Whether this constituted him an officer de facto we leave undetermined. The facts remain, however, that he had been legally appointed and qualified as deputy during the first term of his principal, ánd had performed the duties of a deputy clerk during such term and continued to do so, under a verbal appointment and without objection from anybody during the second term of his principal. While so acting, he, in open court, presumably with the sanction of the court, if not by its express direction, administered to the accused the oath which is the foundation of this prosecution. It certainly was so much within the knowledge and approval of the court that the. testimony given by the accused under that oath was material in obtaining the divorce which he was seeking in the case then on trial. It is fundamental that every court has inherent power to do all things which are reasonably necessary for the administration of justice within the scope of its jurisdiction. State v. Caywood, 96 Ia., 367. Therefore, it is not necessary that there should be a statute empowering the courts to administer oaths in the trial of cases. The power is implied in the jurisdiction to try cases and to receive the testimony of witnesses under oath. It was upon this principle, apparently, that the Supreme Court of Tennessee held that “the judge himself may administer the oath, or he may direct any one in his presence, in open court, to administer it, and the oath will be valid.” Stephens v. State, 1 Swan (Tenn.), 157. In that case the court continues: “The oath does not derive its sanction and validity from the circumstance merely that it was administered by the clerk, but, from the circumstance that it was duly administered in open court, with the approval and under the control of the judge presiding. It was not, therefore, necessary that the person avIio administered the oath, 'under these circumstances, should have been a legally appointed deputy.” A similar ruling Avas made in Oaks v. Rodgers, 48 Cal., 197. In delivering the opinion of this court in Staight v. State, 39 Ohio St., 496, Okey, J., noted these cases in Tennessee and California, and pointed out the distinction between them and the case then under consideration. The same distinction applies here, The oath was administered by Folk in a judicial proceeding by the court and in the presence of the judge presiding therein. It was necessarily under the supervision of the judge. It was the performance of a mere ministerial act for the court. Being in other respects strictly legal, and being administered in open court Avith the assent and under the supervision of the court, it could Avork no prejudice to the accused whether the oath wag administered by the judge, or by an officer of the court, or by any one not an officer who performed that duty for the court. In addition to the authorities already cited the views here-expressed are supported by the following cases: Server v. State, 2 Black. (Ind.), 35; State v. Knight, 84 N. C., 789; State v. Dreifus, 38 La. Ann., 877; State ex rel. v. Polke, 7 Black. (Ind.), 27, 29; Keator v. People, 32 Mich., 484; Masterson v. State, 144 Ind.,, 240.

Exceptions sustained.

Burket, C. J., Spear, Shaucic, Price and Crew, JJ., concur.  