State v. Dalzell

• Decision Date: 24 August 1925
• Docket Number: 19089.
• Citation: 135 Wash. 621,238 P. 635
• Court: Washington Supreme Court
• Parties: STATE v. DALZELL.

238 P. 635

135 Wash. 621

STATE v. DALZELL.

No. 19089.

Supreme Court of Washington

August 24, 1925

Department 1.

Appeal from Superior Court, Snohomish County; Bell, Judge.

James Dalzell was convicted of perjury. From a judgment sustaining defendant's motion in arrest of judgment, the State appeals. Affirmed.

C. T Roscoe, M. H. Forde, and Charles R. Denney, all of Everett for the State.

Sherwood & Mansfield and Coleman & Fogarty, all of Everett, for respondent.

BRIDGES J.

The respondent was charged by information with the crime of perjury, based upon an affidavit previously made by him. After conviction, his motion for arrest of judgment was sustained, and the state has appealed.

Section 2183, Rem. Comp. Stat., says:

'Judgment may be arrested on the motion of the defendant for the following causes. * * * 2. That the facts as stated in the indictment or information do not constitute a crime or misdemeanor.'

The respondent contends that the information is fatally defective in the following respects: (1) In that it failed to allege that respondent swore to the affidavit with intent that it would be uttered or published as true; (2) in that it failed to state that the affidavit alleged to have been made by him was by him subscribed; (3) in that it failed to allege that the court had jurisdiction of the action in which the affidavit was used; (4) in that it does not show that the defendant was sworn to 'testify or depose truly.'

Section 2351, Rem. Comp. Stat., is as follows:

'Every person who, in any action, proceeding, hearing inquiry or investigation, in which an oath may lawfully be administered, shall swear that he will testify, declare, depose or certify truly, or that any testimony, declaration, deposition, certificate, affidavit or other writing by him subscribed is true, and who, in such action, proceeding, hearing, inquiry or investigation shall state or subscribe as true any material matter which he knows to be false, shall be guilty of perjury in the first degree and shall be punished by imprisonment in the state penitentiary for the more than fifteen years.'

Section 2356, Rem. Comp. Stat., being a part of the perjury statutes, is as follows:

'The making of a deposition, certificate or affidavit shall be deemed to be complete when it is subscribed and sworn to or affirmed by the defendant with intent that it be uttered or published as true.'

The first objection raised is that the information fails to allege, as is required by the section last quoted, that the affidavit was made by the respondent, 'with intent that it be uttered or published as true.' The charging part of the information states that at a certain time and place the respondent willfully, unlawfully, and feloniously committed the crime of perjury, in that he, being first duly sworn before one authorized to administer oaths, did 'then and there falsely declare and swear to be true, when in truth and in fact he, the said James Dalzell, well knew the same to be false and untrue, the following material allegations and statements contained in an affidavit filed and submitted with a motion for a new trial in cause No. 21592, then and there pending before Hon. Ralph C. Bell, in the superior court of the state of Washington for Snohomish county, in which cause the state of Washington is named as plaintiff and one A1 Wilson is named defendant.' The information then states the matter sworn to in the affidavit was false and untrue, are so known to be by the defendant.

It would seem from section 2356, Rem. Comp. Stat., supra, that one does not commit perjury by making a false statement in an affidavit, unless one makes it with the intent that it shall 'be uttered or published as true.' There is nothing in the information to comply with this statute. There is no express allegation that the respondent made the affidavit knowing or believing that it would be, or that it was intended that it should be, used for any purpose in the case of State v. Wilson, or in any other case. The...