State v. Boland

• Citation: 12 Mo.App. 74
• Parties: STATE OF MISSOURI, Respondent, v. MORGAN BOLAND, Appellant.
• Decision Date: 04 April 1882
• Court: Court of Appeal of Missouri (US)

12 Mo.App. 74

STATE OF MISSOURI, Respondent,

v.MORGAN BOLAND, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 4, 1882.

1. Section 1421 of the statute, concerning false oaths, affidavits, and statements, provides for an offence distinct from perjury.

2. It is enough that the affidavit or statement is made before an officer having general authority to administer oaths.

3. A notary public is authorized, in Missouri, to administer oaths to the same extent as any judicial officer.

APPEAL from the St. Louis Court of Criminal Correction, CADY, J.

Affirmed.

F. D. TURNER and T. B. HARVEY, for the appellant: The information is, on its face, insufficient. The notary had no authority to administer such an oath. Notaries “can do nothing not expressly authorized, and under the circumstances which authorize it.”-- Ex parte Kreiger, 7 Mo. App. 367; Ex parte Mallinkrodt, 20 Mo. 493; Ex parte Mumford, 67 Mo. 607. To constitute the statutory offence it must appear that the oath was one required or authorized by law.-- United States v. Babcock, 4 McLean, 113; 2 Whart. Cr. Law, sect. 1269; The State v. Marshall, 47 Mo. 380.

CHESTER H. KRUM and CHARLES T. NOLAND, for the respondent, cited: The State v. Flagg, 25 Ind. 244; Skouton v. Wood, 57 Mo. 380; Omealy v. Newell, 8 East, 372; The Commonwealth v. Powell, 2 Metc. 10.

BAKEWELL, J., delivered the opinion of the court.

Defendant was convicted in the St. Louis Court of Criminal Correction of a misdemeanor in making a false affidavit, contrary to the provisions of the statute. The amended information under which the trial was had, makes substantially the following allegations: That defendant wilfully, corruptly, and falsely, on November 7th, made a corrupt voluntary false affidavit before “one William H. Yeaton, who was then and there a notary public, duly commissioned and qualified within and for said city of St. Louis and state of Missouri, and having full authority and being duly qualified by law to administer oaths.” The affidavit is set out, and gives a long conversation which defendant in his affidavit swears to have taken place between himself and one Charles P. Johnson, at the Union Depot in St. Louis. The purport of the conversation being that Johnson endeavored to pursuade defendant to allow himself, as a member of the board of police commissioners, to be corruptly influenced against the enforcement of the laws against gaming. It is further alleged that the said affidavit was made for “the purpose of defaming the reputation and character of one Charles P. Johnson, then and at the time a resident of said city; and in order and for the purpose that the said affidavit and statement might be used, read, and introduced in a certain investigation then about, to wit, on the eighth day of November, 1881, to be begun before William L. Ewing, Edward C. Simmons, Alexander Kinkead, and John H. Maxon, who were then and there police commissioners for the city of St. Louis, touching and concerning the discharge of their official duties by said police commissioners in the detection and punishment of the offence of gambling in said city, and touching and concerning the conduct and discharge of public duties by the police force of said city in regard to the detection, prevention, and punishment of said offence of gambling in said city; which said investigation was in fact begun before the said police commissioners on said eighth day of November, A.D.1881, and at which said investigation, at the instance and with the consent of said police commissioners, said false statement and affidavit was introduced, used, read, and published.”

The only question suggested for our consideration is as to the sufficiency of the complaint. It is contended by appellant that the affidavit does not appear to have been material to any legal proceedings, or to have been authorized by law; and that it does appear that it was made before an officer not authorized to administer an oath.

The statutory provision under which defendant was convicted is as follows (Rev. Stats., sect. 1421):--

“Every person who shall wilfully, corruptly, and falsely, before any officer authorized to administer oaths, under oath or affirmation, voluntarily make any false certificate, affidavit, or statement of any nature, for any purpose, shall be deemed guilty of a misdemeanor, and shall upon conviction be punished by imprisonment in the county jail not less than six months, or by fine not less than five hundred dollars.”

This provision first appears in the revision of 1855 (1 Rev. Stats. 1855, p. 600, sect. 4), from which it was adopted from the Code of 1852 of the state of Indiana. The Indiana law is word for word the same, from the beginning of the section to the word “misdemeanor.” The offence in Indiana is declared to be perjury, and is made punishable by imprisonment in the penitentiary. 2 Davis' Stats. Ind. 1852, p. 444, sects. 41, 43.

This section has been the subject of judicial construction in Indiana in a case that was considered, however, long after the section was adopted into our own law. The supreme court of Indiana holds ( The State v. Flagg, 25 Ind. 244), that the policy of the provision is to discourage all unnecessary and voluntary affidavits or sworn statements, and that, where no oath or affirmation is required to the statement, if the person making the statement voluntarily make a false oath thereto, he shall be held liable under this section, although such statements may not be of a matter material to the question involved.

In Kentucky, there is a statutory provision, that “if any person, in any matter which is or may be judicially pending, or on any subject in which he can be legally sworn, or on which he is required to be sworn, when sworn by a person authorized to administer an oath, shall wilfully and...