
    James Call v. The State of Ohio.
    An application to the probate court for marriage license is a “ matter . . . depending” before said court, within the meaning of section 9 of the crimes act (S. & C. 405), and the applicant may be indicted for perjury, for swearing falsely before said court, on such application, touching the legality of the intended marriage, although the applicant is not one of the parties thereto.
    
      Motion for a writ of error to the court of common pleas of Vinton county.
    At the v\ vober term, 1870, of the common pleas, James Call was indicted for perjury, in knowingly and corruptly taking a false oath before the probate court, in the matter of his application for license for the marriage of one Carmi Call and Harriet Davis ; the false oath being, that Harriet Davis was a resident of Vinton county, that her father was dead, and that her mother consented to the proposed marriage.
    The defendant demurred to the indictment. The demurrer was overruled, exception taken, and a plea of not guilty entered. The verdict was guilty, as charged in the indictment.
    Thereupon the defendant moved to set' the verdict aside, and for a new trial, on the grounds that the verdict was against the law and the evidence and the charge of the court.
    This motion was ovemiled, and judgment was entered against the prisoner, but its execution was suspended in view of this application for a writ of error.
    
      Marie & Barnhill for the applicant:
    The affidavit upon which the indictment is predicated was made by the defendant in an expxwte proceeding before the probate court. Such an affidavit does not come within the spirit and meaning of the statute defining the crime of perjury. S. & C. 405.
    The statute regulating the issuing of marriage licenses (S. & C. 855, sec. 7) does not provide for punishing* the party who makes the application.
    The legislature has always construed the statute as not covering an ex-pparte proceeding of this character. S. & O. 547, 607.
    The statute (S. & C. 855, sec. 7) does not provide for a third person making an application for a marriage license. Who is “ the party applying” % Is it not the person who intends to get married, whether the application is made in person or by an agent ? In this case it was Carmi Call who applied, and not James Call, his agent. That being so, it is clear that James Call cannot be guilty of perjury as charged. If Oarmi was the party applying for the license, the probate judge had no authority, by law, to administer the oath to James Call.
    
      F. B. Pond, attorney-general, for the State.
    
      James M. MoGilUvray, prosecuting attorney, also for the State:
    Swearing falsely before a probate judge in obtaining a marriage license is punishable as perjury by the laws of Ohio.
    The probate judge had authority by law to administer the oath to James Call in the matter of granting the license.
    He may administer all oaths required by law (S. & C. 1213, sec. 4), and he may examine the party applying for such marriage license, upon his oath or affirmation, relative to the legality of the contemplated marriage. S. & C. 855, sec. 7.
    The party applying, as meant in said sec. 7, is the person who makes his appearance before the probate judge to obtain the marriage license, whether it be the party for whose marriage the license is granted or a third party.
    The residence of the female and the death of the father were material facts for the probate judge to inquire about, of the party applying, and the judge was authorized by law to inquire as to those facts. S. & C. 855, sec. 6; S. & C. 856; 67 O. L. 6.
    Swearing falsely before a probate judge in obtaining a marriage license is made perjury by sec. 9 of the crimes act. S. & O. 405. The application for a marriage license is a matter or cause depending in the probate court — one of the civil courts of the State. Or the application would come within the clause of section 9, making it perjury to take a false oath or affirmation wilfully and corruptly befoi’e any “ other person? The words “ other person” would include to the probate judge; and the clause covers all false swearing not covered by previous clauses of tbe section; and no further legislation on the subject is necessary.
   By the Court:

This was an indictment for perjury. It assigns the perjury upon a false oath knowingly and corruptly taken before the probate court, touching the legality of an intended marriage, on behalf of the parties for which the plaintiff in error was at the time making application to the court for a marriage license. It is claimed that this is no charge of perjury within the meaning of the crimes act. (S. & C. 405, sec. 9.) We think otherwise. The application was a “ matter . . . depending ” before the “ court,” and the court certainly had power to administer the oath. The motion must be overruled.  