State v. Caywood

• Decision Date: 12 December 1895
• Citation: 96 Iowa 367,65 N.W. 385
• Parties: STATE v. CAYWOOD.
• Court: Iowa Supreme Court

96 Iowa 367

65 N.W. 385

STATE

v.CAYWOOD.

Supreme Court of Iowa.

Dec. 12, 1895.

Appeal from district court, Montgomery county; H. E. Deemer, Judge.

The defendant was indicted for the crime of perjury, was convicted, and adjudged to be confined in the penitentiary for the term of three years. He appeals. Affirmed.F. P. Greenlee, J. M. Junkin, and Smith McPherson, for appellant.

Milton Remley, Atty. Gen., and Edward Mills, Co. Atty., for the State.

KINNE, J.

1. The indictment charges that, in the cause in which it is alleged the perjury was committed, this defendant “was then and there by the court duly sworn, at and during said trial, and the said court had full power and authority to then and there administer the oath to the said John Caywood; and the said John Caywood did then and there take his proper oath as a witness in said case, and the said court did then and there administer the said oath, as aforesaid, to the said John Caywood.” It is insisted that a “court” has no authority to administer an oath; that the indictment must set out the name of the person administering the oath; that the court is made up of the judge, the clerk, the sheriff, and members of the bar. It appears from the record that some of the evidence tends to show that the oath was administered by the trial judge, and there is other evidence which tends to show that it was administered by the clerk of the court. The question as to the want of authority in the court to administer the oath, and that defendant was not duly sworn by the court, was raised by objections to the admission of evidence, which were overruled; also in an exception taken to the following instruction given by the court: “It is alleged that the oath was administered by the court. Now, if it be shown that an oath was administered by the judge presiding at the trial, or by the clerk of the court, and in either event in open court, this will be sufficient upon this point.” The Code of 1851 (section 1594) provided: “All courts have power to administer oaths connected with any matter pending before them, either by any judge, justice or clerk thereto, or by any other person appointed for that purpose by them.” The same provision is found in Revision 1860, § 2684. The Code of 1851 also contained independent provisions authorizing oaths to be administered by each judge of the supreme court, each judge of the district court, each clerk of the supreme court, each clerk of the district court, each justice of the peace, each notary public, each judge of the county court, and by the prosecuting attorney when acting in his stead. Code 1851, § 979. Now, the Revision of 1860 contained in section 2684 the same provisions as are found in section 1594 of the Code of 1851. It also contained independent provisions, authorizing the same officers to administer oaths as are authorized by Code 1851, § 979. See Revision 1860, §§ 201, 1843. In the Code of 1873 section 2684 of the Revision is omitted, and by section 277 the following, among other officers, are authorized to administer oaths, viz.: Each judge of the supreme court, each judge of the district court, the clerk of the supreme court, each clerk of the district court, as such. From the fact that section 2684 of the Revision is omitted from the Code of 1873, and because the “court” is not in express terms mentioned in section 277 as being authorized to administer an oath, it is contended that no such authority is now vested in the court. This claim is grounded on the theory that there is a distinction between a court and a judge, and that many powers conferred upon a judge cannot be exercised when the same judge is sitting as a court. Cummings v. Railroad Co., 36 Iowa, 173. Nevertheless, it is true that the term “court” may sometimes be construed to mean the judge of the court, depending upon the connection and object of its use. So, a court is defined as “the judge, or body of judges presiding over a court.” Black, Law Dict. tit. “Court.” Our statute providing what shall be essential in an indictment for perjury requires the indictment to state “in what court or before whom the oath alleged to be false was taken.” Code 1873, § 4312. In State v. O'Hagan, 38 Iowa, 504, it was held that an indictment which charged that the defendant was “duly sworn before said court, the said court then having full and competent authority to administer an oath to him in that behalf,” was good, and that it would have been sufficient to have charged that the defendant was “duly sworn.” It is said that this case (which was decided in 1874) must have arisen prior to the time the Code of 1873 went into effect, and when the “court” was expressly authorized to administer the oath. There is, however, nothing in the opinion to indicate that the case may not have arisen after the Code of 1873 took effect. The opinion refers to certain sections in the Revision of 1860 and in the Code of 1873. Now, we think that a judge of the district court, when acting in the capacity of a court, has the same power to administer an oath as he has when not so acting. It is in many districts, and always has been, the practice for the court to administer the oath to all witnesses. Can it be possible that he has no power so to do? We may readily agree that custom, in that respect, does not make the law if no power in fact exists. We think it would be an astounding doctrine to hold that, under the statute, courts have no authority to administer oaths. Furthermore, it would be, we think, giving a very narrow and unwarranted construction to the statute, when we consider the purposes sought to be attained by the authority conferred. It is true that the indictment must in some manner aver that the defendant was duly sworn by a person then having authority to administer an oath. State v. Phippen, 62 Iowa, 54, 17 N. W. 146. Now, the evidence shows that the oath in controversy was administered either by the court,--that is, the judge sitting as a court,--or by the clerk of the district court during the session of court, and hence in presence of the court. If it be true that the oath was in fact administered by the clerk, it was so done under the direction of the court, and, in legal contemplation, may be said to have been administered by the “court.” A statute requiring an oath to be administered “by the court or judge” was held complied with by the oath being administered by the clerk in open court, under the direction of the court. Oaks v. Rodgers, 48 Cal. 197. And see State v. Knight, 84 N. C. 793;Stephens v. State, 1 Swan, 157;Keator v. People, 32 Mich. 484;Walker v. State (Ala.) 18 South. 393. Nor do we think that section 277 of the Code is a limitation on the power of the court. The power of a court to administer an oath in proper cases, in proceedings before it, inheres in the court itself, and could not be taken away except by express legislation to that effect. It has been held that it is enough to allege in an indictment for perjury that the witness was sworn before a court, and proof of swearing before an officer of court, in the presence of the court, will sustain an allegation of swearing before or by the court. 2 Whart. Cr. Law (9th Ed.) § 1287. The same eminent writer observes that swearing before a clerk in open court is equivalent to swearing before the court. Id. § 1315, and cases cited. So, it is held that an oath administered by a clerk of the court is the same, ordinarily, as if administered by the judge, unless the statute otherwise provides. 2 Bish. Cr. Law (5th Ed.) § 1020. Again, there could be no prejudice to the defendant if the oath was administered by the clerk, and the indictment charged it as being administered by the court. Under our statute, the indictment is sufficient if it...