State v. Bixler

• Decision Date: 19 June 1884
• Citation: 62 Md. 354
• Parties: THE STATE OF MARYLAND v. THOMAS C. BIXLER, alias THOMAS LEPSTINE.
• Court: Maryland Court of Appeals

62 Md. 354

THE STATE OF MARYLAND v. THOMAS C. BIXLER, alias THOMAS LEPSTINE.

Court of Appeals of Maryland

June 19, 1884

The cause was submitted to ALVEY, C.J., YELLOTT, STONE, MILLER ROBINSON, IRVING, and RITCHIE, J.

D N. Henning, State's Attorney, and Charles B Roberts, Attorney General, for the appellant.

Charles T. Reifsnider, and Charles E. Fink, for the appellee.

IRVING J., delivered the opinion of the Court.

The appellee having been indicted in the Circuit Court for Carroll County, for perjury, demurred to the indictment, and his demurrer having been sustained, and judgment thereon having been given for his discharge, the State has brought the case to this Court by writ of error.

Two grounds of error have been assigned in the petition for the writ, which are as follows, in substance:

1st. That the Court held the omission of the word "corruptly" from the indictment in charging the offence, was fatal; whereas the State insists, that it was unnecessary, as the language used fully imported that the offence was """corruptly" committed.

2nd. In that the Court held, that the indictment in alleging the offence, charged a conclusion of law, without sufficiently designating wherein the accused had committed perjury, whereas the State contends the indictment is not obnoxious to this criticism. After alleging the official character of the registration officer and his duty; and the application of the accused for registration as a voter; and that the accused made oath that he would true answer make to all questions propounded by the registration officer necessary to the ascertainment of his qualifications to be registered as a qualified voter, the indictment proceeds to make the charge in the following language, viz., "and the said Thomas C. Bixler having been then, to wit, on the day and year last aforesaid, there so sworn to such questioning as aforesaid, by said officer of registration, and in answer to such questioning as aforesaid by the said officer of registration, did then, to wit, on the day and year last aforesaid, there wilfully, knowingly, maliciously, and falsely say, depose, swear and represent on his oath aforesaid to the said officer of registration, among other things, in substance and to the effect that he had never been convicted of an infamous crime in said State, and not pardoned by the Governor of said State, and that he, the said Thomas C. Bixler had never been convicted of a crime, and served his sentence therefor in the Maryland penitentiary house in said State without having been pardoned for said crime by the Governor of said State; whereas, in truth and in fact, the said Thomas C. Bixler, before the day and year last aforesaid had been convicted of an infamous crime in said State, and had not been pardoned by the Governor of the said State therefor, and had been convicted of a crime in the said State, and had served out his sentence therefor in the penitentiary house of said State, and had not been pardoned by the Governor therefor; as he the said Bixler on the day and year last aforesaid, then well knew, and so the jurors aforesaid, upon their oath aforesaid, do say, that the said Thomas C. Bixler, on the day and year last aforesaid, before the said officer of registration, who, then and there had competent power and authority to administer said oath to said Thomas C. Bixler, did in manner and form aforesaid, commit wilful and corrupt perjury," &c., concluding "contrary to the form of the Act of Assembly in such case made and provided."

The first ground of error assigned, consists in the omission from the description of the oath, the word "corruptly" whereas, it is only charged that the prisoner swore "wilfully, knowingly, maliciously and falsely." We are of opinion that these words necessarily involve "corruptly."

It cannot have been made wilfully, knowingly, maliciously and falsely without being corruptly done; and it is with that view, that the act in the winding up of the indictment is characterized as "wilful and corrupt perjury."

The indictment is not at common law, but under the statute; and the statute declares, "an affirmation or oath if made wilfully and falsely in any of the following cases, shall be deemed perjury; first in all cases where false swearing would be perjury at common law; secondly in all affidavits required by law to be taken" &c. Code, Art. 30, sec. 155. It is the "wilfully and falsely" swearing to an untruth in any of the instances mentioned in the statute, which it defines as perjury and subjects to punishment as such. As the allegation, in that regard, is made in the words of the statute, it is sufficient. 1 Wharton Am. Cr. Law, sec. 364; State vs. Elborne, 27 Md., 488; Cearfoss vs. The State, 42 Md., 406; Parkinson vs. The State, 14 Md., 198. For the decision of this point, it is immaterial to determine under which of the classes named in the statute, this offence falls. It is only necessary to inquire whether it is made as the statute requires, and we think it was sufficiently characterized. It is not out of place, however, for us to say in respect to that question that inasmuch as the Legislature has devolved upon the officers of registration, as well as the judges of election, the duty of exercising judgment in the discharge of their functions, their office is, under the decision of this Court in Bevan vs. Hoffman, 18 Md., 479, and Friend vs. Hammill, 34 Md., 314, in its nature judicial; and the proceeding before the officer of registration is a quasi judicial proceeding; hence, the case may very properly fall under the first class designated in the statute.

The defendant in error contends, that inasmuch as section 35, of the Act of 1882, chapter 22, provides, that fraudulently procuring registration as a voter, shall be a misdemeanor...