People v. Pollock

• Decision Date: 03 June 1918
• Docket Number: 9069.
• Citation: 176 P. 329,65 Colo. 275
• Parties: PEOPLE v. POLLOCK.
• Court: Colorado Supreme Court

176 P. 329

65 Colo. 275

PEOPLE v. POLLOCK.

No. 9069.

Supreme Court of Colorado

June 3, 1918

Rehearing Denied Dec. 2, 1918.

Error to District Court, City and County of Denver; William D Wright, Judge.

An information for perjury was filed against James G. Pollack. From a judgment quashing the information, the People bring error. Reversed and remanded, with directions.

Fred Farrar, Atty. Gen., and W.B. Morgan, Asst. Atty. Gen., for the people.

William A. Bryans, of Denver, for defendant in error.

ALLEN J.

January 11, 1916, an information was filed in the district court of the city and county of Denver charging or attempting to charge one James G. Pollock with the crime of perjury. On motion of the defendant, the court quashed the information. The people bring the case here for review. The only error assigned relates to the act of the trial court in sustaining the motion to quash.

So far as material to the questions presented to us by the record the information alleges, in substance, that the defendant on April 7, 1915, signed and executed an affidavit in the matter of an application for a bond in a case then pending in the district court between the people and one John Wheeler; that the application was before the commissioner of safety and acting sheriff, who had full power and lawful authority to take and receive bonds and recognizances; that the defendant was sworn and the oath was administered to him by a notary public; that the affidavit was one touching the defendant's property qualification to become a surety upon the bond of the said Wheeler; and that in the affidavit the defendant, Pollock, "did willfully, corruptly, and falsely swear" that he was the owner of certain described real estate situated within the city and county of Denver, "valued at $5,000 and clear," and that he was "worth the sum specified" in Wheeler's bond. The information by appropriate averments showed the falsity of the defendant's sworn statements.

The grounds of the motion to quash are that "there is no law of the state of Colorado which authorized any notary public to administer any such oath" as was taken by the defendant, and that there is no "law in the state of Colorado requiring this defendant, in matters similar to those referred to in the information, to take any oath or to subscribe the same before a notary public or any other person whatsoever."

The motion to quash presents but two questions: First, May a surety on a bail bond be guilty of perjury if he falsely and knowingly makes an affidavit as to his ownership of property or other qualifications as a surety, when justifying as such surety before a sheriff authorized to take the bail bond in question? Second. Is a notary public authorized to administer the oath taken in such a case?

If the first question be answered in the affirmative, the second would also be thus answered, since by section 4671, R.S. 1908 (section 5258, Mills' Ann. St. 1912), a notary public is authorized to administer an oath on any occasion where the affidavit is authorized or required by law to be taken. The only remaining question presented in this case is: Does the law authorize or require a surety on a bail bond to make an affidavit touching his qualifications as such surety, in cases where such bail bond is lawfully taken by the sheriff?

There is no statute requiring the sureties on a bail bond, taken by the sheriff, to make affidavit that they are worth the amount for which they bind themselves. Section 1947, R.S. 1908 (section 2974, Mills' Ann.St.1912), which authorizes a sheriff to let persons to bail upon their entering into a recognizance with one or more sureties,...