State v. Brandon

• Decision Date: 10 May 1938
• Docket Number: 14683.
• Citation: State v. Brandon, 186 S.C. 448, 197 S.E. 113 (S.C. 1938)
• Parties: STATE v. BRANDON.
• Court: South Carolina Supreme Court

197 S.E. 113

186 S.C. 448

STATE v. BRANDON.

No. 14683.

Supreme Court of South Carolina

May 10, 1938

Appeal from General Sessions Circuit Court of York County; S.W. G Shipp and A. L. Gaston, Judges.

I. L Brandon was convicted for false swearing under oath, and he appeals.

Reversed and remanded.

R. B Hildebrand, of York, and Dunlap, Dunlap & Roddey, of Rock Hill, for appellant.

W. G. Finley, of York, for the State.

FISHBURNE Justice.

The appellant, I. L. Brandon, was tried and convicted in the court of general sessions of York county on December 16, 1936, upon an indictment charging him with false swearing under oath. The indictment for false swearing was based upon testimony given by him in a case entitled State v. Ed Brandon, which was tried in the same court on July 10, 1933.

The defendant appealed to this court from the judgment below, and pending his appeal applied to the court for leave to make a motion in the lower court for a new trial, on the ground of afterdiscovered evidence.

The afterdiscovered evidence upon which the motion was founded consisted in the showing that upon the trial of the case of State v. Ed Brandon, when the appellant in this case was examined as a witness for the defense, the deputy clerk who administered the oath to him on which the prosecution for false swearing is grounded did not have authority under the laws of the state to administer it.

When the motion was heard by us (no issue of due diligence having been raised), this court concluded that a prima facie showing had been made by the appellant, which entitled him to the relief prayed for, and an order was issued, granting the motion and allowing the appellant leave to make his motion for a new trial in the lower court on the ground stated, and in the meantime, until such motion could be heard, suspended his appeal then pending in this court.

Thereafter the motion for a new trial was duly heard by his honor, Judge A. L. Gaston, who, after a full hearing, refused it.

The case is now on appeal in this court from the order denying the motion for a new trial issued by Judge Gaston, and from the order passed by his honor, Judge Shipp,-the trial judge who heard the case below-denying the motion for a new trial upon other grounds.

The facts are not in dispute with reference to the status of Mrs. Caldwell, who was acting as the deputy clerk of court in the trial below, and who administered the oath to the appellant at the time he was called as a witness in that case.

The office of deputy clerk of court is an office recognized and established by law. The statute authorizing the appointment (section 3581, 1932 Code) provides: "The clerk may appoint a deputy or deputies, to be approved by the court of Common Pleas, a record of whose appointment shall be made in the clerk's office. Before entering on the duties of his appointment such deputy must take the oath prescribed by the Constitution and the oath with respect to duelling; and when so qualified, the deputy may do and perform any and all of the duties appertaining to the office of his principal. Such appointment shall be evidenced by a certificate thereof, signed by the clerk, and shall continue during his pleasure. He may take such bond and security from his deputy as he shall deem necessary to secure the faithful discharge of the duties of the appointment, but shall in all cases be answerable for the neglect of duty or misconduct in office of his deputy."

It appears that Mrs. Caldwell was appointed deputy clerk of the court by T. E. McMackin, clerk of court, on January 28, 1931, and received from him a written certificate showing such appointment. This appointment was duly approved by a judge of the court of common pleas, and she duly qualified by taking the oath prescribed by law, gave bond, and entered upon the discharge of her duties. The term of office of Mr. McMackin expired on January 12, 1933.

He was re-elected to the office of clerk of court for York county, and was again commissioned by the Governor, and qualified on January 17, 1933. On this latter date he entered upon the tenure of a new term of four years. Mrs. Caldwell was verbally reappointed as deputy clerk, gave bond, and continued to discharge the duties of that office. However, she received no certificate in writing of such appointment, signed by the clerk; nor was her appointment approved by the court of common pleas; nor did she take the oath required by the statute, nor was a record of her appointment made in the clerk's office.

From the undisputed facts, it is obvious that the clerk of the court failed to comply with specific legal requirements in the reappointment of his deputy clerk. We think it follows as a necessary conclusion that at the time she administered the oath to the appellant, on July 10, 1933, during this holdover period, she was not an officer de jure. That she was a de facto deputy clerk of the court is conceded by the appellant. His contention now is that as such de facto officer she did not have legal authority to administer an oath upon which the statutory offense of false swearing may be based.

The statute under which the defendant was tried and convicted (section 1400, 1932 Code) provides: "Whoever shall, wilfully and knowingly, swear falsely in taking any oath required by law, and administered by any person directed or permitted by law to administer such oath [italics added], shall be deemed guilty of perjury, and, on conviction, incur the pains and penalties of that offense."

It will be observed from the wording of this statute that the oath must be administered by a person directed or permitted by law to administer such oath.

"It is an essential prerequisite to the establishment of the guilt of one accused of the crime of perjury or false swearing, as the case may be, that the oath shall have been administered by a person authorized by law to administer it, and where the oath was administered by a person having no legal authority to do so, as by a person acting merely in a private capacity, or by one who had authority to administer certain oaths, but not the one in question, or by one who had authority seemingly colorable, but no authority in fact, there can be no conviction, for the oath is altogether idle." 48 C.J. § 78, p. 856.

"Perjury or false swearing cannot be assigned upon an oath administered by an officer who has failed to qualify * * *." 48 C.J., § 81, p. 857.

And see to the same effect 21 R.C.L. § 8, p. 260.

Cases from many jurisdictions in support of the quoted text are cited in the notes, including our own cases of State v. McCroskey, 3 McCord 308, 14 S.C.L. 308, and State v. Hayward, 1 Nott & McC. 546, 10 S.C.L. 546.

That perjury or false swearing, as the case may be, may be predicated upon a false statement made under oath administered by a de facto officer has been both affirmed and denied.

Some of the authorities, adopting the affirmative view, hold that a de facto deputy clerk may legally administer the oath in a criminal proceeding such as perjury. Keator v. People, 32 Mich. 484; Morford v. Territory, 10 Okl. 741, 63 P. 958, 54 L.R.A. 513.

The opposite doctrine is distinctly expressed in the case of Biggerstaff v. Commonwealth, 11 Bush, Ky., 169:

"At the common law the authority of the officer administering the oath was always open to inquiry. The existence of that rule was recognized and continued in force by the Revised Statutes, section 2, article 8, chapter on Crimes and Punishments, which provided 'that if any person, in any matter which is or may be judicially pending, or on any subject in which he can legally be sworn, or in which he is required to be sworn, when sworn by a person authorized by law to administer an oath, shall willfully and knowingly swear, depose, or give in evidence that which is untrue and

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