Spangler v. District Court of Salt Lake County

• Decision Date: 17 August 1943
• Docket Number: 6514
• Citation: 104 Utah 584,140 P.2d 755
• Court: Utah Supreme Court
• Parties: SPANGLER v. DISTRICT COURT OF SALT LAKE COUNTY et al

140 P.2d 755

104 Utah 584

SPANGLER v. DISTRICT COURT OF SALT LAKE COUNTY et al

No. 6514

Supreme Court of Utah

August 17, 1943

Original certiorari proceeding by Dr. H. B. Spangler against the District Court of Salt Lake County, and Hon. A. H Ellett, one of the Judges thereof, to set aside a judgment of conviction entered in that court and to dismiss the complaint.

Case remanded to district court with directions to vacate judgment and dismiss the cause.

E. A Rogers and Harry Metos, both of Salt Lake City, for plaintiff.

H. D Lowry, of Salt Lake City, for defendants.

LARSON, Justice. WOLFE, C. J., and McDONOUGH, MOFFAT, and WADE, JJ., concur.

OPINION

LARSON, Justice.

A proceeding in certiorari to the District Court of Salt Lake County to set aside a judgment of conviction made and entered in that court, and dismiss the complaint. Hereafter plaintiff herein will be referred to as defendant.

On the 2nd day of March, 1938, one E. B. Harrison, a law enforcement officer of the Department of Registration, appeared at the defendant's office in the Felt Building in Salt Lake City, Utah, and advised him that a complaint had been issued against him for violating the law and requested that he go with him to Sandy, Utah, before R. White, a Justice of the Peace. The defendant accompanied him to Sandy and to the place of business conducted by the said Justice, and thereupon the said Harrison signed a complaint which he had procured from the County Attorney's Office, but did not swear to it or take any oath in regard to said complaint. The warrant of arrest was also produced by said Harrison and signed by said Justice.

The defendant was not represented by counsel, nor was he advised that he was entitled to counsel, nor did he in any manner waive the right to counsel. The Justice read the complaint to the defendant and asked him if he wanted to enter a plea. The defendant said something about writing out the prescription, and the justice said to him, "Well are you guilty of this?" The defendant said, "Yes." Then the justice asked him if he were ready for sentence and defendant said that he might as well get it over with and the justice thereupon sentenced him to pay a fine of $ 299 and serve six months in the county jail, that the jail sentence would be suspended upon payment of the fine.

It has been stipulated in this case that no entry of said oral judgment was made in the justice's docket until November 28, 1938. Within the time allowed by law the defendant appealed to the District Court of Salt Lake County from the judgment and sentence in the said case, and on November 27, 1939, defendant moved the court to dismiss said cause upon the grounds alleged in said motion, which motion was denied. On June 5, 1942, the case was brought on for trial in the District Court, and over the objection of the defendant, the state was permitted to amend the original complaint for the reason that the same did not state a cause of action. The defendant was tried before a jury and convicted, and sentenced to serve 90 days in the county jail. Defendant brings certiorari charging the District Court was without jurisdiction to hear or determine the matter on the grounds:

First: That the complaint before the justice was not sworn to as prescribed by law.

Second: That the justice's court did not have jurisdiction because the defendant was not represented by counsel, did not waive counsel, and the justice did not advise him that he was entitled to counsel.

Third: That the justice's court lost jurisdiction of the cause and of the defendant by not rendering judgment within two days after verdict on March 2, 1938; and that the purported judgment entered by the justice November 28, 1938, was null and void.

Fourth: That since there was no valid complaint before the justice, and that court had no jurisdiction to enter its judgment, the District Court, whose jurisdiction in the cause would be derivative, could have no jurisdiction.

Fifth: That since the original complaint did not state a public offense, it could not be amended in the District Court in a matter of substance, since the statute of limitations had then run against the prosecution.

Let us examine the first point made by defendant.

105-57-2, U. C. A. 1943, provides:

"Proceedings and actions before a justices' court for a public offense must be commenced by complaint under oath * * *."

And this court has said that the complaint must be sworn to before a valid conviction may be had. State v. Zolantakis, 72 Utah 251, 269 P. 1006. The record clearly shows, and there is no dispute about it, that Harrison, the complaining witness, did not take an oath, but merely signed the complaint in the presence of the justice of the peace, and under some printing, which reads in part "on being duly sworn by me, on his oath did say. * * *" There is a division of authority whether such an act as this will constitute the taking of an oath, and the courts have gone into many technicalities in discussing this mater. In O'Reilly v. People, 86 N.Y. 154, 40 Am. Rep. 525, where affiant took an affidavit already signed, to a notary, who certified it without any questions being asked, the court held that this was not sufficient to constitute an oath. It was pointed out that as the affidavit read "being duly sworn," as the complaint herein reads, rather than "I do hereby swear" there was no intent shown to undertake a present obligation under oath. The court goes on:

"To make a valid oath, for the falsity of which perjury will lie, there must be in some form, in the presence of an officer authorized to administer it, an unequivocal and present act, by which the affiant consciously takes upon himself the obligation of an oath. The delivery in this case of the signed affidavit to the officer was not such an act, and was not made so by the intention of the one party or the supposition of the other."

However, in the instant case, the complaint was signed in the presence of the justice, though there were no formalities of giving an oath.

An oath has been variously defined as "an affirmation of truth of a statement, which renders one willfully asserting untrue statements punishable for perjury," United States v. Klink, D. C. Wyo., 3 F.Supp. 208; "an outward pledge given by the person taking it that his attestation is made under an impending sense of his responsibility to God," Atwood v. State, 146 Miss. 662, 111 So. 865, 866, 51 A. L. R. 836; "a solemn appeal to the Supreme Being in attestation of the truth of some statement, and an outward pledge that one's testimony is given under an immediate sense of responsibility to God," State v. Jones, 28 Idaho 428, 154 P. 378, 381; any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully, State ex rel. Braley v. Gay, 59 Minn. 6, 60 N.W. 676, 50 Am. St. Rep. 389. It has also been said that while no set formula is required to constitute an oath in verifying a complaint, there must be an unequivocal act whereby affiant consciously takes upon himself the obligation of an oath, State v. Tull, 333 Mo. 152, 62 S.W.2d 389, a form of oath which is of binding force and effect on the conscience of the person to whom it is administered is sufficient. State v. Gay, supra.

Under our statute, 103-43-1.10 U. C. A. 1943 (originally Laws 1937, p. 248), a person willfully swearing to a false complaint would be guilty of perjury, and 103-43-4 provides

"it is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner."

The California Supreme Court in People v. Simpton, 133 Cal. 367, 65 P. 834, 835, was considering an indictment for perjury. In the course of the opinion it was said:

"In an indictment for perjury it must be directly stated in some form of apt words that the defendant was sworn. It is not sufficient that it appears by inference or argument. * * * One may swear who is not duly sworn. In one case the oath, so to speak, is self-imposed, and the swearer incurs no legal liability thereby, while in the other the oath is administered by a person having authority so to do, and the affiant takes it...