
    LAMBERT v. PEOPLE.
    
      N. Y. Court of Appeals ;
    
    
      December, 1878.
    
      [Reversing 14 Hun, 512.]
    Affidavit on Information and Belief.—Punctuation.—Perjury. —Evidence.—Declarations of Third Person.— Non-Resident Notary Public.
    Punctuation in a verified document is not alone a sufficient ground of construction to sustain an indictment for perjury. The rule applied to statutes, that punctuation may be disregarded in ascertaining their true intent and meaning, is applicable to other writings.
    Where an allegation in an affidavit qualified by the clause “according to the best of deponent’s information,” &c., was preceded by another clause not otherwise qualified, the two clauses being separated by a semi-colon,—Held, on an indictment for perjury, that both allegations must be deemed as made on information and belief.
    
    On an indictment for perjury in swearing to a false statement of the condition of a corporation, a witness testified that in applying to the prisoner for information, the prisoner referred him to a third person, who, he said, waá bookkeeper and chief man, and would furnish the witness with the information he wanted, and in witness’ presence said substantially the same thing to the bookkeeper. Held, that this did not make competent the bookkeeper’s declarations, made to the witness in the absence of the prisoner, in reference to the assets of the company.
    
    Such declarations amounted to nothing more than a statement that the bookkeeper who had charge of the books would furnish what information was contained in the same, and conferred no power upon him to make declarations for which the prisoner would be responsible.
    An indictment for perjury cannot be sustained on an oath taken before a person who was not a resident of the State, and therefore not capable of holding office, at the time when he was appointed notary, &c.
    
    The rule that in a collateral proceeding the title of an officer de facto cannot be assailed, does not preclude evidence of entire want of power to make the appointment.*
    It seems, that in cases of perjury, proof that the officer acted as such is only prima facie evidence of his authority.
    Error to the general term of the supreme court, in the first judicial department, to review a judgment of the court of oyer and terminer in New York county, convicting the plaintiff of perjury.
    The plaintiff in error, Thomas S. Lambert, was convicted in the oyer and terminer of New York county of perjury in swearing to an affidavit verified on March 12, 1877, in said county, before one William H. Melick, a notary public. The affidavit was as follows:
    
      [Venue.]
    
    
      “ T. S. Lambert, President, and James Cruickshank, Secretary, of the American Popular Life Insurance Company, being duly sworn, depose and say, and each for himself says, that they are the above described Officers of the said Company, and that on the 31st day of December last, all the above described Assets were the absolute property of the said Company, free and clear from any liens or claims thereon, except as above stated; and that the foregoing Statement, with the Schedules and explanations hereunto annexed and by them subscribed, are a full and correct Exhibit of all the Liabilities and of the Income and Disbursements, and of the general condition and affairs of the said Company on the said thirty-first day of December last, and for the year ending on that day, according to the best of their information, knowledge, and belief, respectively.”
    
      [Jurat.] [Signatures.]
    
    
      This was attached to a statement required by law to be made and deposited annually with the superintendent of the insurance department of the State. The law required this statement to show, among other things, the amount of the assets of the company at the close of the year, specifying as to such assets the manner in which the same had been and then were invested, the amount invested in real estate, in bond and mortgage, in stocks and loans on stocks, premium notes, credits, and other securities. Certain of these items were alleged to have been falsely stated, viz.: loans secured by pledge of stocks, &c., or other marketable securities, $25,513.03; cash, $80,475.19 ; gross premiums due and unreported on policies in force December 13, 1876, $66,576.86.
    The evidence on the part of the prosecution showed that Melick, the notary before whom. the affidavit purported to have been taken, died on March 21, 1877, nine days after the date of the verification, and proof thereof was made by showing his death; the fact of his being a notary, by production of the official list of notaries from the county clerk’s office, showing the date of his last appointment, March 10, 1876 ; proof of 1ns handwriting in the subscription of the jurat, and of the handwriting of the prisoner, and of Cruickshank in the signature to the affidavit, and also by the positive oath of a witness who saw the oath administered and the • paper subscribed by the parties. Evidence was offered on behalf of the prisoner to show that the notary at the time the affidavit was taken, and for eighteen months previously, had been a resident of the State of New Jersey, and that his family resided there, but it was not allowed.
    Mr. McCall, who was deputed by the superintendent to make an examination of the affairs of the company, testified that needing explanations of the books, he applied to the president of the company, the plaintiff in error, and he referred him to a Mr. Reid for the information as the person who knew all about the books; that during a conversation between him and Mr. Reid in the absence of the president, he had told the latter that “Mr. Ballard had said to him that Mr. Reid had said to Ballard that to save time they would find all that false issue marked with a blue pencil,” and “ that it would save time to mark them in that way that Reid replied that he had since then consulted both the officers of the company, and that he declined to say anything more than that “ Lambert knows all about it and can tell you if he wants to that Reid further said, “They were all false or bogus. He did not use the word bogus, but false issue. He, Reid, said there were two or three which were not.’ ’
    This evidence was allowed under objection by the prisoner’s counsel.
    It was also claimed on behalf of the prisoner that the affidavit was not in fact sworn to, and that he was not responsible for the statements contained in the report, which he believed to be true, and that it was substantially true.
    The jury rendered a verdict against the plaintiff in error: and a writ of error was taken by him to the court at general term, which, in affirming the conviction, held, that even though the notary was a nonresident he was an officer de facto and his acts were valid and binding ; that the prosecution was not bound to show affirmatively that the notary had actually taken the oath of office ; and that the evidence of the declarations of Reid were admissible.
    From the judgment entered thereon a writ of error was taken by the plaintiff in error to the court of appeals.
    
      Abram Walceman, for plaintiff in error.
    It is an assumption to say that a statute is repealed because the reason for its continuance may not be apparent (People v. Miller, 56 N. Y. 441, 451). Repeal by implication will not be favored (Potter’s Dwarris, 113, n. g, 155, n. 4, and cases cited; McCool v. Smith, 1 Black, 459-470 ; Rawson v. Rawson, 52 Ill. 69 ; Board Super v. Campbell, 42 Id. 492; The Distilled Spirits, 11 Wall. 356 ; Henderson’s Tobacco, Id. 652). It must be a necessary one (Naylor v. Field, 5 Dutch, [N. Y.] 287-290 ; Potter’s Dwarris, 155, n. 5 ; Sedgwick on Stat. 98 and note; Smith v. People, 47 N. Y. 341). The printed form furnished by the superintendent of the insurance department not having been authorized by law, the filling up and oath to it are also unauthorized and extra-judicial (2 Chitty C. L. 302, 304; 2 Arch. C. P. & P. 1,716, 1,727, 8 ed. ; 2 Bishop C. L. § 1027, and cases cited ; Jackson v. Humphrey, 1 Johns. 498 ; United States v. Babcock, 4 McLean, 113; United States v. Kendrick, 2 Mas. 69 ; People v. Travis, 4 Park. Cr. 213). Evidence of the residence of the notary should not have been rejected (Rex v. Verelst, 3 Camp. 432 ; Wilcox v. Smith, 5 Wend. 231, 235 ; People v. Albertson, 8 How. Pr. 363; Morrell v. People, 32 Ill. 499; R. S. § 1, p. 414; Catharine Wood’s Case, 4 City Hall R. 130 ; 2 Hawkins Pleas of the Crown, 7 ed. 86; 2 Archd. Crim. P. 1722 and note 1, and cases cited ; People v. Tracy, 9 Wend. 265; People v. Carter, 29 Barb. 208). There should have been proof that the prisoner’s name was affixed to the schedule's (United States v. Keen, 1 McLean, 429; People v. Wiley, 3 Hub. 194; Hite v. State, 9 Geiger, 357). General words at the end of a sentence refer to and qualify the whole. (Dwarris on Stat. 704 ; Coxson v. Doland, 2 Daly, 66 ; Fitzgerald v. Mason, 7 N. Y. Weekly Dig. p. 182). The punctuation of a sentence is not to be regarded in its construction (Sedg. on Stat. Construct. 2 ed. 225 ; Gyger’s Estate, 65 Penn. 311 ; Cushing v. Warrick, 75 Mass. 382-385; Hamilton v. The R. B. Hamilton, 61 Ohio N. S. 428, 432; United States. v. Clark, 1 Gall. 496; Wood v. People, 53 N. Y. 511). If the affidavit was a qualified one, then the averment that it was an absolute one is not proven, and the conviction was erroneous (2 Chitty Crim. L. 312-320; Roscoe Crim. Ed. 822; Wharton Crim. L. 226; State v. Lea, 3 Ala. N. S. 605; Commonwealth v. Brady, 71 Mass. 78 ; Williams v. State, 7 Humph. 48; Burns v. People, 49 Barb. 532; Regina v. Sclesinger, 10 Q. B. 670). The introduction of the book containing the names of notaries was error. (Board of Water Commis. v. Lansing, 45 N. Y. 19). Reid’s declarations should not have been received (People v. Parish, 4 Den. 156). The defendant did not make up the accounts himself, but derived his information from others, and if he was imposed upon, or was careless and neglected his duty,- that would not constitute perjury (United States v. Shelmore, 1 Baldw. 370).
    
      Benjamin K. Phelps, Bistriet Attorney, for the People, defendants in error.
    The notary was an officer de jure. The proof that he resided out of the State could not be admitted, and his title was unassailable collaterally (Read v. City of Buffalo, 4 Abb. Ct. App. Dec. 22); in any event he was an officer de faeto, and this was sufficient as to the public and all third persons in every proceeding except one to try his title to the office (Wilcox v. Smith, 5 Wend. 233; People v. Collins, 7 Johns. 549 ; McInstry v. Tanner, 9 Id. 135; Albertson’s Case, 8 How. Pr. 363; People v. White, 24 Wend. 520; People v. Stevens, 5 Hill, 630 ; Greenleaf v. Low, 4 Den. 168 ; People v. Hopson, 1 Id. 579; Thompson v. State, 21 Ala. 53 ; State v. Carroll, 38 Conn. 449 ; People v. Cook, 8 N. Y. 67 ; State v. Hascall, 6 N. H. 352; 2 C. & H. 1101 ; Van Steenburgh v. Kurz, 10 Johns. 167 ; Howard v. Sexton, 1 Den. 440). The report books, checks, &c., of the company were competent evidence (United States v. Wood, 14 Pet. 430). The ledgers of the two banks, as to the state of the accounts of the bank, were competent (Bank of Monroe v. Culver, 2 Hill, 531; White v. Ambler, 8 N. Y. 170; Shelden v. Benham, 4 Hill, 129; Jermain v. Denniston, 6 N. Y. 276 ; Stroud v. Tilton, 4 Abb. Ct. App. Dec. 324). The declarations of Reid were properly received (Wehle v. Spelman, 1 Hun, 634). The form of the affidavit was permissible (McKinney v. People, 3 Park. Cr. 510). It was not necessary to set out the whole affidavit (Campbell v. People, 8 Wend. 636 ; People v. Phelps, 5 Id. 9 ; People v. Warner, Id. 271). As to whether the report should have been made to the comptroller or to the superintendent (see 2 R. S. 6 ed. p. 672, et seq.). The charge as to degree of proof required was correct (United States v. Wood, above cited; Reg. v. Hook, 8 Cox C. C. 5; Woodbeck v. Keller, 6 Cow. 121; People v. Burden, 9 Barb. 467; Commissioners v. Parker, 2 Cush. 212; Hendricks v. State, 26 Ind. 493; Reg. v. Webster, 1 F. & F. 515; 2 Bennett and Heard's Lead. Crim. Cases, 2 ed. 88).
    
      
       Per Miller, Andrews and Earl, JJ. Compare Thompson v. Lumley, 1 Abb. New Cas. 254, and cases cited.
    
    
      
       Per Miller, J., Church, Ch. J., Folger, Earl, and Andrews, JJ. Compare Allen v. Killenger, 8 Wall. 480; United States v. Smith, 12 Int. Rev. Rec. 185; State v. McKinney, 42 Iowa, 205; United States v. Mayer, Ready, 127.
    
    
      
       Per Miller, J., Church, Ch. J., Earl and Rapallo, JJ. See also United States v. Wilcox, 4 Blatchf. 391, 393; United States v. McHenry, 6 Id. 503.
    
   Miller, J.

One of the most serious questions presented by the error book in this case arises in reference to the construction to be placed upon the affidavit in which the alleged perjury is charged to have been committed. It is claimed by the counsel for the prisoner that the affidavit was made upon “information, knowledge and belief,” while the indictment avers that the oath was absolute and unqualified, and the traverse simply avers it to be untrue.

It is not denied that if the verification was, as claimed, on information, knowledge and belief, that the indictment should have traversed and negatived not only the truth of the oath but also the information, knowledge and belief, and if the oath was thus qualified the conviction was erroneous.

The affidavit was appended to statements to be made by life insurance companies, which, with the verification, were prepared and issued in blank form by the insurance department. The first part of the affidavit states that the deponents named therein are the “ officers of the said company, and that on the 31st day of December last, all the above described assets were the absolute property of the said company, free and clear from any liens or claims thereon, except as above stated.” Here a semicolon is inserted, and then follows an allegation “that the foregoing statement, with the schedules and explanations hereunto annexed and by them subscribed, are a full and correct exhibit of all the liabilities,” &c., . . . “on the said 31st day of December last, and for the year ending on that day and the concluding clause, preceded by a comma, viz., “according to the best of their information, knowledge, and belief, respectively.” The claim of the prosecution is that all matters preceding the semicolon are stated unqualifiedly, and that the remainder is qualified by information, knowledge and belief. It will thus be seen that the legality of the conviction, so far as this question considered is concerned, depends entirely upon the insertion of a semicolon between the words stated in the sentence referred to instead of a comma. The point is certainly a very fine one; but it must be determined in strict accordance with the principles of construction applicable to language which is employed in such a connection.

According to well-established grammatical rules a semicolon is a point only used to separate parts of a sentence more distinctly than a comma. Having in view this definition, and the circumstances under which the affidavit in question was made, there is strong ground for claiming that the insertion of a semicolon instead of a comma did not render the previous words employed positive and absolute, and prevent their being qualified by the concluding clause of the affidavit. Aside, however, from this, it may also be remarked that punctuation is by no means an arbitrary standard which is to control the meaning and construction of a sentence in opposition to the actual meaning of the writing. This rule prevails in the construction of statutes (Sedgwick on Stat. Con. 225, note ; Gyer’s Estate, 65 Penn. 311; Hamilton v. Steamboat R. J. Hamilton, 16 Ohio, 428, 432), and punctuation is disregarded in ascertaining their true intent and meaning. The same rule we think is applicable to other writings for the very same reason. It is often made by the printer alone, without regard to the framer or author of the writing or document, and some of the ablest and most learned and accurate of writers give but little attention to the punctuation of their own productions. It certainly would be going very far to hold that a person could be convicted of a crime as flagrant as that of perjury, which depends entirely upon the question arising as to the intention of the party, and can only be committed with full knowledge of the falsity of the allegation, and which must at the same time be willful, corrupt and malicious, upon the mere insertion of a single dot in a sentence, and solely upon the question of precise, accurate and grammatical punctuation.

To uphold the conviction here, we must assume that the accused understood perfectly the effect of the affidavit; that he examined it critically, and considered the force of the commas and semicolons made therein before he took the oath. It may have been that he was ignorant, and the proof does not establish that he had knowledge of the effect of the various pauses which were punctuated, and on a point so critical and nice it is not going very far to assume that he may have supposed very naturally that the closing words qualified the entire affidavit.

Upon a question so close and exact it cannot, we think, be claimed that it must be held as a matter of law, under the circumstances existing, that the accused committed willful and corrupt perjury. The crime of perjury cannot be predicated upon such a state of facts, as the essential elements of willfulness, corruption and malice are not manifest. A possible misconception or a mistake in swearing as to the construction of a written instrument is not enough to warrant an indictment and conviction for perjury (Rex v. Crispequy, 1 Esp. 280; United States v. Conner, 3 McLean, 573 ; United States v. Stanley, 6 Id. 409 ; 3 Wharton C. L. §§ 2199 and 2200 ; Steinman v. Williams, 6 Penn. 170, 178).

Nor can the charge be upheld upon the ground that the punctuation is not necessarily controlling, as no fair construction of the affidavit authorizes the inference that the accused intended to swear absolutely and unqualifiedly as to that portion of the affidavit which precedes the semicolon referred to and otherwise as to the remainder. No reason exists for swearing to nearly all of the schedules with a qualification, and to a comparatively small portion of them absolutely ; and it is not by any means unreasonable to hold that the intention was to embrace all of these in the concluding clause of the affidavit, which includes what the affiant knew as well as that portion in regard to which he had any information or belief. This interpretation is not only in accordance with the grammatical, but I think it accords with the legal rule in the construction of statutes ; that, where general words occur at the end of a sentence, they refer to and qualify the whole (2 Daly, 68, and authorities cited).

It is said that the statements which precede the semicolon were subjects which might be considered within the personal knowledge of the accused. This is undoubtedly the fact as to the statement that he was an officer of the company, and.his “knowledge” in this respect is expressly provided for in the concluding clause of the affidavit, as we have already seen. As to the allegation, however, that the assets named were the absolute property of the company, there is no ground for claiming that he had absolute knowledge in regard to them any more than as to numerous other items contained in the schedules.

There is every reason for claiming that the accused knew that the statement was a full and correct exhibit of all the liabilities and of the income and disbursements, and of the general condition, quite as well as that he had knowledge of the property and assets which belonged to the company; and it is a strained, forced, and an unreasonable interpretation to hold that the accused, who made oath to an affidavit prepared and furnished by the insurance department, intended to make a discrimination as to its different parts, and was fully aware that he had done so. There is nothing either in its language or in the subjects mentioned therein which warrants any such conclusion. No reason exists for verifying a portion of the items absolutely which is not entirely applicable to all of them, and, if it had been intended to make any such distinction it should have appeared in the affidavit by ending the sentence at the semicolon, and commencing another which would have expressed the design of the affidavit to change the residue' to knowledge, information and belief. This could easily have been done by the insertion of a period and the words “This deponent further says” after the semicolon, and thus no question would remain as to what actually was intended.

As the indictment avers an affidavit which was positive and unqualified, and the proof shows that it was qualified, it necessarily follows that the conviction cannot be upheld.

It is urged that there was error upon the trial in admitting the witness McCall to testify to the declarations of one Reid in the absence of the prisoner. These declarations consisted of a conversation between the witness and Reid, in which the witness told Reid that “Mr. Ballard had said to him that Mr. Reid had said to Ballard that to save time they would find all that false issue marked with a blue pencil,” and “that it would save time to mark them in that way that Reid replied that he had, since the witness told Ballard, consulted both the officers of the company, and that he.declined to say anything more than that “Lambert knows all about it and can tell you if he wants to.”

Reid further said “They were all false or bogus. He did not use the word bogus, but false issue. He, Reid, said there was two or three which were not. All these uncollected premiums.”

These declarations of Reid were made in the absence of the prisoner, and the evidence tended to establish that Lambert was guilty. The “blue pencil marks” on the books, without evidence to show that the accused had any knowledge of, or anything to do with them, or any evidence as to who made them, were allowed to go to the jury, as . well as the subsequent testimony, based entirely on hearsay, and the declarations of Reid as to the false issue of policies. In other words, the conviction of the prisoner was sought to be obtained upon the declarations of a third person as to the assets of the company, and the truth of the affidavit to which he had made oath.

No question would ordinarily arise as to the illegality of such evidence. It is claimed, however, by the prosecution that the witness McCall was referred to Reid by the prisoner for information, as the person who knew all about the books, and therefore what Reid stated was competent. I think that the evidence was entirely insufficient to confer authority upon Reid to bind the prisoner by his declarations. The proof on this subject is the evidence of McCall, who swears on his direct examination, “That the prisoner said Reid was bookkeeper and chief man and would furnish me with the information I wanted,” and upon his cross-examination that the prisoner went with him to Mr. Reid and said, “ This is Mr. McCall, who will call for whatever books he wants ; you will wait on him and give him what he wants.” Also, that “Mr. Reid is our chief man here.” These declarations amounted to nothing more than a statement that Reid, who had charge of the books, would furnish what information was contained in the same, and conferred no power upon Reid to make declarations for which the prisoner would be held responsible. The facts presented bear no analogy to a case where the witness is referred to another person as to a particular fact, and the declarations of such person are allowed as testimony (Wehle v. Spelman, 1 Hun, 634), as the declarations of Reid went far beyond furnishing the evidence as to any fact, and included his opinion as to the character of the entries referred to. It is no answer to say, that if Reid was mistaken, or if the books did not establish the facts alleged, it could have been proven that they were wrong, for the prosecution was bound to make out a case by competent testimony, and while the prisoner was required to meet the facts proven, he was not called upon to answer the declarations of Reid as to the false issue of policies. Nor can it be claimed, I think, that the testimony was innocuous and of no account because the evidence was sufficient to show guilt without it; for it is impossible to determine how far declarations of this kind might affect the minds of the jury in determining the question as to the guilt or innocence of the prisoner upon trial.

It is by no means clear that this evidence may not have been the very turning-point upon which the verdiet of the jury was founded, and the decision of the judge, in admitting the testimony, was manifestly erroneous.

Upon the trial, the counsel for the prisoner offered evidence for the purpose of showing that the notary before whom the affidavit was taken, at the date of the same, was and for eighteen months previously had been a resident of the State of New Jersey, and that his family resided there. The affidavit bore date upon March 19, 1877, and the indictment averred that he was then a notary public of the city and county of New York, “ having full, competent, and lawful authority to administer the said oath.”

The testimony for the prosecution showed that the notary had an office in the city of New York, and that he had acted as a notary for some years. It was also proved by the equity clerk of the supreme court, who produced a book from the county clerk’s office, that it contained a list of the notaries and time of their appointment, qualification, &c. The date of the appointment of the notary who took the oath was stated to be upon March 10, 1876, and that his term would expire upon March 30, 1878. The testimony offered by the prisoner’s counsel would establish that at the time when the notary was appointed, and ever since then, he was a resident of the State of New Jersey. According to the statute of this State, no person is capable of holding a civil office, who, at the time of his appointment, is not a citizen of the State (1 R. S. 414, § 1).

It was a material and important fact for the prosecution to establish that the oath was legally administered (3 R. S. 6 Ed. 955, § 1), and the authority and jurisdiction of the officer had been shown prima facie by the evidence referred to. The question presented is whether proof of the facts offered was admissible for the purpose of showing that the person claiming to act as notary was not a legally appointed officer, and therefore his act was void and without jurisdiction.

The effect of the testimony offered would have been to assail the authority of the officer who administered the oath. The rule is well-settled that the acts of an officer de facto are valid as respects the public and the rights of third persons ; and it is not allowable to assail the title of such officer in a collateral proceeding (Read v. City of Buffalo, 4 Abb. Ct. App. Dec. 22; McKinstry v. Tanner, 9 Johns. 134; People v. Stevens, 5 Hill, 616, 630 ; Greenleaf v. Low, 4 Den. 168 ; People v. Hopson, 1 Id. 574, 579 ; People v. Collins, 7 Johns. 549 ; People v. Cook, 8 N. Y. 67).

In People v. Cook, supra, it is said in the opinion, that “ a challenged voter, swearing before a de facto board of inspectors, is as much liable to punishment under the statute as if the oath had been administered by inspectors de jure.” While this may be a sound rule of law it does not affect the question now considered, for the reason that the inspectors, in such a case, may be lawfully appointed or elected, and the failing to take the oath is at most an irregularity or defect which cannot affect the legality of their election as inspectors in the first instance. This is clearly distinguished from a case where there is an entire want of power to make the appointment. The question here goes to the origin of the appointment, and the right to hold the office by virtue thereof, and is not merely an irregularity occasioned by a failure of the officer to take the oath required by law. There is a wide and marked distinction between the right to act at all and the failure to comply with some statutory requirement in assuming powers conferred by an appointment to discharge the duties of aD. official position.

So also, in Howard v. Sexton, supra, where it was held that parties to a submission to arbitration may waive the oath of the arbitrators, and that witnesses whose oath is thus waived may commit perjury by false swearing before such arbitration. The question as to the original authority and jurisdiction of the court and its power to act did not arise.

In none of the cases cited was the distinct question presented which we are now called upon to determine. Nor does either of them relate to any question arising upon an indictment for perjury where jurisdiction is the essential feature, and the utmost extent to which any of the authorities cited have gone in cases of perjury is that proof that the officer acted as such is only prima facie evidence of his authority.

Conceding the correctness of the rule upheld in the cases cited, and that such rule is most generally applicable, I am of the opinion that it cannot be invoked where an indictment is found for perjury and the foundation of the charge rests entirely upon the competency or the jurisdiction of the officer or tribunal before which the oath is taken. This is one of the issues presented by the indictment in this case, and upon principle it would seem ' to be quite obvious that the accused party had a right to show that there was no such officer or tribunal in existence, as is alleged in the indictment. Such a rule only operates in cases where a charge of perjury is preferred, while the acts of an officer, de facto, acting under color of authority, even if he had been illegally appointed, under ordinary circumstances would not be affected or impaired. No pernicious consequences or serious inconvenience would result to the public at large by the enforcement of such a principle, as all acknowledgments made or other acts of a notary public, or of any other officer de facto, done while in the performance of his duties, except in cases where false swearing was directly charged, would be valid and lawful.

The argument of db inconveniently therefore, has no application and should not influence the decision of the question considered, even if it could properly be urged to affect the disposition of a grave criminal charge under any circumstances.

The principle stated is, we think, also held by sufficient authority. In Rex v. Verelst (3 Camp. 432), an indictment was found for perjury committed before one acting as surrogate in the ecclesiastical court, in making oath to an answer in a cause there pending for divorce. The surrogate having acted in that capacity, it was held that it was prima facie evidence of his appointment, and that he had authority to administer the oath. It appeared, however, from the registrar’s book containing the appointment that it was irregularly made, for the reason that instead of being authenticated in the usual manner, no notary public, nor the registrar, nor his deputy, had been present at the time for the purpose of authenticating the act according to the rule of the ancient common law, and it was claimed that the appointment was a nullity. In opposition to this view it was contended by the prosecution that the officer appointed having acted for over twenty years in the capacity of surrogate, a judge and jury at nisi prius ought not to inquire into the manner of his appointment, and even if they did, they might presume that an officer was present from the entry, and the appointment might be regular although the entry was deficient. Lord Ellbeboeougih held that the presumption arising from the acting as surrogate only stands until the contrary is proved, and after reviewing the facts, decided that the allegation that Dr. Parson, who acted as surrogate, had authority to administer the oath was negatived, and the defendant was acquitted.

There is a striking analogy between the case cited and the one at bar, for in both of them the question related to the validity of the appointment, and if it was illegal in the one case the application of the same principle would render it equally so in the other.

The case referred to is a nisi prius decision, but it has been cited in the elementary books approvingly as well as in several reported cases in the courts.

In Wilcox v. Smith (5 Wend. 231, 235), a constable was sued for trespass, and justified under an execution issued by a justice of the peace, which was regular upon its face, and it was held that showing that the officer issuing the process was an officer de facto, is not merely prima facie evidence that he is an officer de jure, but was conclusive for the protection of a ministerial officer required to execute such process. In commenting on the case of Rex v. Verelst, supra, it is said in the opinion, “Here the act of the officer was made the foundation of an affirmative criminal proceeding, instead of being used as a defense or protection, and it may well be that his strict legal title to his office under such circumstances may be inquired into (1 Hawk. P. C. ch. 69, § 4), but if an officer had been prosecuted as a trespasser for an act done under a precept or warrant issued by the surrogate, I apprehend an inquiry into the title of the surrogate to his office after an unquestioned exercise of its powers for twenty years, would not have been permitted.”

In 2 Hawkins P. C. 7 London ed. p. 86, it is laid down that, “ It seemeth clear that no oath whatsoever, taken before a person acting merely in a private capacity, or before those who take upon them to administer oaths of a public nature without legal authority for their so doing, or before those who are legally authorized to administer some kind of oaths, but not those which happen to be before them or even before those who take upon them to administer justice by virtue of an authority seemingly colorable but in truth unwarranted and merely void, can ever amount to perjuries in the eye of the law, because they are of no manner of force, but are altogether idle.”

It is also said by the same author, “ that no false oath in an affidavit made before persons falsely pretending to be authorized by a court of justice to take affidavits, in relation to matters depending before such court, can properly be called perjury, because no affidavit is in any way regarded unless it be made before persons legally entrusted with power to take it,” &c.

In Arch. Cr. Pleadings, 7 S. & B. ed. pp. 537, 538, it is stated that the oath “ must be taken before a competent jurisdiction ; for if it appear to have been taken before a person who had no lawful authority to administer it (3 Inst. 165, 166), or who had no jurisdiction of the cause (3 Inst. 166 ; Yelv. III.), the defendant must be acquitted.” And numerous authorities are cited to sustain this position. It follows, as a logical result of the text last cited, that proof may be introduced for the purpose of showing a want of authority in the officer taking the oath.

In Murrell v. People (32 Ill. 499) an indictment was found for perjury before the clerk of the circuit court. One of the grounds of error alleged was, that there was no proof that the person who administered the oath was clerk as alleged. It was held that it was requisite that it should be proved that the person before whom the oath was taken was authorized by law to administer it; that proof that the person who administered the oath habitually acted in the capacity of a particular office, is perhaps onlyjgrima facie evidence of the fact; but until rebutted, it was sufficient without producing his appointment or commission. This case therefore sustains the doctrine that the presumption from acting may be rebutted by proof to the contrary, citing Rex v. Verelst (supra) and other authorities.

The principle stated is elementary, and I am unable to discover how it can be disregarded without violating a well-established legal rule.

It is said that -the notary was an officer de jure, and having been regularly appointed by the proper authority, who must be presumed to have passed upon the question of his residence, it is therefore res adjudicada. Conceding that, as a general rule, the governor may appoint an alien or a convicted felon, a minor, or other person, who is disqualified from holding a civil office, to an official position, and that inquiry cannot be made as to the title to the office collaterally, there is no reason why such a doctrine should prevail where the jurisdiction of the officer and his power to administer an oath is a subject of controversy and dispute, and a contest is made on that point upon the trial of án indictment for perjury. As we have seen, the power, the authority, and the right of the officer to administer the oath is the very foundation of the charge, and the basis upon, which the offense rests, and hence is a matter which must be lawfully proved. Without testimony to establish this important fact, the indictment cannot be upheld, and the whole charge must fail; and when such evidence is introduced, the right to contradict it is clear, unequivocal, and cannot be controverted by presumption that the appointing power has performed its duty. The case of Rex v. Verelst (supra), which is fully sustained by other authorities, is directly in point on this question, and we think the doctrine there laid down is controlling.

In the conclusion at which I have arrived in reference to the question last discussed, it is not intended to decide that where a public officer holds an office under a valid appointment or election, that a subsequent disability can be made the subject of inquiry in any other manner than by a direct proceeding for that purpose, or that his acts as an officer de facto are not valid until he is lawfully declared to be disqualified. Such a case has no analogy to one where there never was any power to act, and an entire want of authority from the commencement.

There is also another ground upon which I think that the evidence offered was admissible. The evidence introduced by the prosecution was very slight and by no means conclusive. No commission was introduced to show Melick’s appointment, and only a single witness testified that he had been in the habit of acting for some years. The book introduced from the county clerk’s office did not show that he had qualified by taking the oath of office, nor was such oath produced. No evidence of the genuineness of his signature in the book was given, nor was his handwriting distinctly proven. The evidence, at most, was prima facie, and to rebut the presumption arising from the same, and to show the improbability of his having been appointed to such an office, it was, I think, competent to prove that he was actually a non-resident, and was entirely disqualified from holding any such office. It was at least an open question as to the weight to be given to the testimony introduced by the prosecution, and the evidence offered should have been received as bearing upon that branch of the case.

There are numerous other questions in the error book of a serious character. As, however, the conviction was erroneous upon the grounds stated, it is not important to consider them, and for the reasons already given, the conviction and judgment must be reversed, and a new trial granted.

Earl, J.

I concur in the result reached by Judge Miller, and favor a reversal of the judgment upon three grounds.

1. It was necessary for the people to show that the oath alleged to be false was taken before either a de jure or a de facto notary. The only proof given was that Melick, who administered the oath, had acted as a notary for some years. This was prima facie evidence that he was a de jure notary. The defendant had the right to meet this prima facie case by any evidence tending to show that he was not de jure a notary, and the evidence, offered to show that Melick, at the time of his alleged appointment, and subsequently to the time he administered the oath, was a resident of New Jersey, had such tendency. If true, it would have shown that he was a person who could not have been legally appointed, and hence would have destroyed the presumption that he had actually been appointed. There could be no presumption that the governor appointed one to the office of notary whom he had no legal right to appoint. If this evidence had, therefore, been received and uncontradicted, it would have been necessary then for the people to show that Melick was a notary de facto. This could not have been shown by evidence that he had merely acted as such. The de facto character of officers is never established by simple proof that they have acted as such. In addition to such proof, it must be shown that they had color of office, or some semblance of competent authority. This is generally shown by proof of some election or appointment, formal, but irregular or defective, under which the officer has assumed to act. I am not, however, prepared to deny that an officer may have sufficient color, in some cases, without any appointment or election whatever ; as when he takes possession of the public building or room where the duties are to be discharged, and has possession of the public property pertaining to the office, and is thus clothed with all the indicia of official position, and has for a considerable time, with the acquiescence of the public, ■ and without dispute, openly and notoriously exercised the duties of. the office. Such a case could rarely, if ever, occur in this country ; but if it should • occur, it might give color of office. To illustrate more clearly my meaning : if one should take possession of a county clerk’s office, claiming to be clerk, and should there act as clerk for a considerable time, by the general acquiescence of the public, there being no one else to exercise the duties of the office, he might have sufficient color of office to make him clerk de facto. But a notary public, having-no public office, clothed with none of the symbols or outward tokens of official position, being one of thousands who may, anywhere in the same county, exercise the duties of the same office, can not get color of office by simply acting from time to time as he might have opportunity. He can get color of office only by an appointment, emanating from the appointing power, or from some power having, at least, a colorable right to make the appointment. If the governor should commission him, without confirmation by the Senate, or while he was a non-resident, and he should then act, he would be in office under color of appointment, and thus become a notary de facto. These views are abundantly sustained by the authorities in this State (People v. Collins, 7 Johns. 549 ; Wilcox v. Smith, 5 Wend. 231; Ring v. Grout, 7 Id. 341; People v. White, 24 Id. 520 ; Hamlin v. Dingman, 5 Lans. 61; People v. Cook, 14 Barb. 259 ; S. C., 8 N. Y. 67). There was, therefore, error in the exclusion of the evidence as to the residence of the notary.

2. For reasons stated fully by Judge Milleb, there was error in the admission of the evidence of the witness McCall as to the declarations of Beid.

3. It is conceded that there could be no conviction under this indictment, if the words “ according to the best of their information, knowledge and belief,” applied to the whole affidavit. I think they do so apply, and concur generally with what Judge Milleb says upon this point. The question is not how the affidavit may be made to read, by a critical and strictly grammatical construction, but how it would be commonly understood. We are to construe this as we think mankind generally would understand it. Such qualifying words in brief affidavits are usually put at the end, and are usually intended to qualify the whole affidavit. So far as I can perceive, there was just as much reason for qualifying the whole as the part immediately preceding the qualifying words. But if the legal construction of this affidavit is in doubt, the prisoner is entitled to the benefit of such doubt. It is a humane principle of the law that a prisoner shall have the benefit, not only of doubts upon the facts but doubts also upon the law.

I concur, therefore, in the reversal of the judgment.

Hand, J.

I agree in the result of Judge Miller’s opinion, that there should be reversal of conviction and new trial in this case. I cannot, however, concur in all the grounds stated by him ; and as the fate of any new trial may be dependent upon some of them, it is proper that the views of the court should be expressed upon these questions.

1. I think the language of the affidavit, in its proper and natural construction, and according to grammatical rules, is a positive affirmation as to the prisoner being an officer of the company, and the “above named assets” being the absolute property of the company. Of course this does not, in the least degree, prevent an acquittal of the prisoner, if the jury find that-he did not intend, in fact, to swear positively, but only upon information and belief as to these matters. Hence the observations of the opinion as to harsh consequences from such a construction I do not think just or well founded.

The question presented here really is, whether the proof of the making of that affidavit was admissible at all, as within the indictment charging a positive oath. In other words, whether the first part of the affidavit could fairly be construed to be a positive affirmation, and must not necessarily be held to be an affirmation on information and belief, as a question of grammatical construction. That technical question of grammar is raised, therefore, not by the prosecution, but by the prisoner. As already stated, I think it could be so construed, and, indeed, that no other construction is strictly grammatical; and hence, that there was no error in the court below in not holding that the whole affidavit was necessarily upon information and belief. I disagree with the opinion, therefore, upon this point.

2. I agree with the opinion that there was error in the admission of evidence of Reid’s statements to the i extent they were allowed.

3. I also agree that the evidence as to the notary’s residence was, under the circumstances, improperly excluded. I am not prepared to' assent to the doctrine of the opinion that perjury can only be committed before an officer de jure ; and that, on the trial of an indictment for that crime, the title of such officer can always be attacked. Nor, indeed, am I prepared now to say that if, in the present case, the commission of the notary from the proper appointing power had been shown, that the prisoner could have raised such a question as non-residence. I am inclined to think that in such a contingency, the question of residence being often a very nice one, the validity of the appointment could not thus be attacked. But here there was hardly any proof that the party who took the affidavit was a notary at all. The list in the clerk’s office proved absolutely nothing; and, indeed, I do not see how it was admissible. The mere fact that he assumed to act as a notary was all the proof really given of his official position. It is doubtful, to my mind, whether this was any proof of even color of office. But, if it be conceded that it tended in. some degree to show a de facto officer, or to raise a presumption or inference that he had been appointed, I think proof that the person was a non-resident, and therefore incapable of holding that position, was admissible to rebut any such presumption that he had ever been appointed, and was anything but a mere intruder. Of course, if legal proof of any sort of an appointment had beén made, there would be no longer any room for presumption upon this point, and nothing of that sort which could be rebutted ; but not so, as the case now stands.

Miller, Earl, and Hand, JJ., read for reversal and venire de novo. Church, Ch. J., concurred, first, on Reid declarations ; second, on rejection of evidence of non-residence of notary. Folgkeb, J., first, on Reid declarations; second, as to notary, with Hand, J. Rapadlo, J., first and second with Hand, J., and third with Eabl, J., on notary. Andrews, J., first, on Reid declarations; second, on construction of affidavit.

Judgment reversed. 
      
       Compare Roderigas v. East River Savings Inst., 19 Alb. Law J. 359.
     