Morford v. Territory Oklahoma

• Decision Date: 08 February 1901
• Citation: 63 P. 958,10 Okla. 741,1901 OK 19
• Parties: ROBERT MORFORD v. THE TERRITORY OF OKLAHOMA.
• Court: Oklahoma Supreme Court

1901 OK 19

63 P. 958

10 Okla. 741

ROBERT MORFORD v. THE TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: February 8, 1901

Error from the District Court of Payne County; before John H. Burford, District Judge.

Syllabus

¶0 1. PERJURY--What Constitutes. Perjury cannot be assigned upon the alleged false testimony of a witness given in the course of a trial, where the court has no jurisdiction of the offense charged, or of the defendant. But, if the proceedings are merely erroneous or voidable, even if there be such irregularities or defects as would require a reversal of the cause on appeal, false testimony given in the course of such trial, if material, does constitute perjury.

2. OFFICER DE FACTO--Acts of. Where an officer exists under the law, and a person is elected to fill such office, and duly qualities and enters upon the discharge of his official duties, he is a de facto officer, and his acts are valid, notwithstanding the fact that he may not possess all the necessary qualifications as prescribed by the statute to fill such office.

3. SAME. The official acts of a de facto officer are recognized as valid on the high ground of public policy, and for the protection of those having official business to transact, and the acts of such de facto officer cannot be collaterally attacked.

Keaton & Kearful, for plaintiff in error

J. C. Strang, Attorney General, for defendant in error.

HAINER, J.:

¶1 The appellant, Robert Morford, was indicted, tried and convicted of the crime of perjury in the district court of Payne county, and sentenced to serve a term of five years at hard labor in the territorial penitentiary, at Lansing, Kansas. The perjury of which the defendant was convicted was assigned upon certain alleged false testimony given in the case of the Territory v. William G. Martin, who was tried and convicted upon the charge of criminal libel in the probate court of Payne county, in November, 1897. There is no contention in the brief of counsel for appellant that any error was committed in the trial of the case at bar which would warrant a reversal of the cause, but the only contention is that in the case of the Territory v. Martin, who was tried and convicted of criminal libel in the probate court, and which judgment was subsequently affirmed by this court, (8 Okla. 41), he was not tried for such offense according to law; that said trial of Martin was coram non judice, and therefore, void, for the following reasons:

1. That the trial in the case of the Territory v. Martin in the probate court, wherein it is alleged in this case that the false testimony was given, was had before a jury composed of only six persons.

2. That said trial was had upon a mere complaint of one other than the county attorney.

3. That the trial by the jury was presided over by a probate judge who was not a lawyer, nor ever licensed to practice law.

¶2 In Martin v. The Territory, 8 Okla. 41, 56 P. 712, this court held that the probate courts of this Territory have jurisdiction of the offense of criminal libel. The probate court having jurisdiction of the defendant and of the offense of which he was convicted, any error occurring during the trial, no matter how irregular or erroneous it might have been, is no excuse or justification for the crime of perjury for which Morford was indicted, tried and convicted. It is true that the doctrine is well established that where the court has no jurisdiction of the defendant or of the crime of which he is charged, any false testimony given in the course of such trial does not constitute perjury; but, on the other hand, if the trial was merely voidable, even if there be such defects as would require a reversal of the cause on appeal, false testimony given in the course of such trial, if material, constitutes perjury.

¶3 Wharton, in his work on Criminal Law, sec. 2225, announces the rule as follows:

"A suit which is actually void and null from want of jurisdiction or other incurable defects, is not one in which perjury can be committed. But if the proceedings are merely voidable, even though there be such defects as require a reversal on error, false swearing in its conduct is perjury, if such false evidence could by any contingency be introduced as testimony."

¶4 The trial of Martin by a jury composed of only six persons upon the charge of criminal libel, if error, was merely erroneous and would not render the entire proceedings null and void for want of jurisdiction. And hence, we think, so far as the issues involved in this case are concerned, it is wholly immaterial whether or not Martin was tried by a jury of six persons or by a jury composed of twelve persons, as it is contended by the appellant. It would be a strange and novel doctrine to announce that perjury could not be predicated upon false testimony given in the course of a trial that was merely irregular, erroneous or voidable, and which could not affect the jurisdiction of the court in which the trial was had, although such errors might have occurred on the trial as to constitute reversible error on appeal.

¶5 The next proposition for which counsel contend this case should be reversed, is that the trial of Martin in the probate court for the offense of criminal libel, was had upon a mere complaint of one other than the county attorney. The record does not sustain counsel in this contention. It appears from the testimony of Robert Lowry, who was a witness in this cause, that an information was filed in the probate court instead of a complaint; that such information was filed by the county attorney; and that said information was prepared by Mr. Lowry in...