State v. Howard

• Decision Date: 13 June 1916
• Docket Number: 13361.
• Citation: 91 Wash. 481,158 P. 104
• Court: Washington Supreme Court
• Parties: STATE v. HOWARD.

158 P. 104

91 Wash. 481

STATE v. HOWARD.

No. 13361.

Supreme Court of Washington

June 13, 1916

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Henry H. Howard was charged with the crime of perjury in the second degree. From a judgment sustaining a demurrer to the information, the State appeals. Reversed and remanded.

Alfred H. Lundin, W. F. Meier, and John D. Carmody, all of Seattle for the State.

Eugene A. Childe, A. J. Falknor, and R. G. Sharpe, all of Seattle for respondent.

ELLIS, J.

Defendant was charged in the superior court of King county with the crime of perjury in the second degree. The information, in substance, stated that on December 31, 1913, he subscribed and swore to the contents of an affidavit with intent that the same be published as true, before a notary public of the state of Washington, duly commissioned and qualified, whereby he 'did then and there willfully, unlawfully, knowingly falsely, feloniously, and contrary to his oath swear that the condition of Christopher, Knickerbocker & Howard, private bank, at the close of business on December 31, 1913, was as follows,' setting out the statement of the resources and liabilities of the bank as stated in the affidavit, and charging that the statement was false in many specified particulars. The court sustained a demurrer to the information on the ground that it did not state facts sufficient to charge a crime. The state abiding by its pleading, the proceeding was dismissed. The state appeals.

It is conceded that there is no statute of this state requiring an officer of a state bank or any other person to make an affidavit of its financial condition such as that set forth in the information. The sole question presented is this: Can a prosecution for perjury in the second degree be successfully predicated upon a written statement in form an affidavit, voluntarily made, but not required by law? The question is one of first impression in this state and merits careful consideration. Appellant takes the affirmative relying upon the following statutory provisions as found in Rem. & Bal. Code 'Sec. 2353. Every person who, whether orally or in writing, and whether as a volunteer or in a proceeding or investigation authorized by law, shall knowingly swear falsely concerning any matter whatsoever, shall be guilty of perjury in the second degree and shall be punished by imprisonment in the state penitentiary for not more than five years, or by imprisonment in the county jail for not more than one year.

'Sec. 2354. The term 'oath' shall include an affirmation and every other mode authorized by law of attesting the truth of that which is stated. A person who shall state any matter under oath shall be deemed to 'swear' thereto.'

'Sec. 8298. Every duly qualified notary public is authorized in any county in this state,--* * *

'3. To take depositions and affidavits, and administer all oaths required by law to be administered. * * *'

The respondent contends that in order to constitute perjury in the second degree under section 2353 the false oath, whether oral or in writing, must be either required by law or made in a proceeding or investigation authorized by law, citing State v. Wilson, 83 Wash. 419, 145 P. 455. In that case the different degrees of perjury are discussed at length. It is there pointed out that our statute (section 2351) defining perjury in the first degree is but declaratory of the common law, and is intended to apply in all cases where the false oath is taken and testimony given in or in aid of a judicial proceeding, and that section 2353 defines and subjects to punishment other offenses against truth. But in that case we did not attempt an exhaustive analysis of section 2353 or to define its exact limits. In that case it was contended by the state that in so far as perjury may be committed 'in a proceeding or investigation authorized by law' perjury in the second degree is included in a charge of perjury in the first degree. It was only in answer to that contention that we said:

'We cannot believe that the Legislature ever intended such consequences, but rather, by adopting section 2353, it meant to cover those offenses against truth which occur in extrajudicial proceedings and investigations and proceedings and investigations held by quasi judicial boards, commissions, and committees where a false oath could not be held to be perjury under the theory that it operated as an 'obstruction of justice' as the stream of justice flows in the courts of the state, or in proceedings ancillary or in aid of the jurisdiction of the courts to try and determine public and private controversies. 'Proceedings or investigations authorized by law' must be held to mean proceedings or investigations defined by or held under the warrant of the legislative body as distinguished from an offense recognized as criminal at the common law, which is adopted in so far as it is not inconsistent as an integral part of our Criminal Code.'

That this was not intended as marking the definite limits of the crime of perjury in the second degree as defined by section 2353, is plainly apparent from the much broader language immediately following it:

'It is evident that section 2353 was passed to cover, by general statute, offenses which in some states have been called false swearing, and made punishable eo nomine by statute.'

A perusal of section 2353 shows that it recognizes two kinds of swearing, namely, voluntary swearing and swearing where the witness may be compelled to testify. The word 'volunteer' is plainly used in contradistinction to the case where the witness, 'in a proceeding or investigation authorized by law,' may be compelled to testify; otherwise the word 'volunteer' would have no meaning. The obvious intent of the statute is to treat voluntary false swearing with the same severity as false swearing in a proceeding or investigation authorized by law. The statement of the two things in the disjunctive makes this plain. When the force of this disjunctive statement is once clearly caught, every shadow of ambiguity vanishes. It is at once manifest that the words 'authorized by law' neither have relation nor give a character to the oath of a 'volunteer.' They are part of the disjunctive phrase, and can only qualify the words 'proceeding' and 'investigation,' with which they are juxtaposed. The phrase 'or in a proceeding or investigation authorized by law' may be eliminated without in the least changing or impairing the statute so far as it applies to voluntary oaths. For the purpose of this discussion, therefore, the statute may be read as follows:

'Every person who, whether orally or in writing, * * * as a volunteer * * * shall knowingly swear falsely concerning any matter whatsoever, shall be guilty of perjury in the second degree. * * *'

So read, the statute clearly denounces false swearing by a volunteer, not alone concerning matters where an oath is required or authorized by law, but 'concerning any matter whatsoever.' Plainer words could not be used to convey that meaning and no other. They compel the conclusion that an affidavit, though not required by law, may be made the basis of a prosecution for perjury in the second degree.

Respondent further argues, in substance, that an oath implies the existence of some form of inquiry required by law, and that an affidavit being a sworn written statement, there can be no such thing as an affidavit unless made to be used in some proceeding, investigation, or matter for which provision is made by statute. No authority is cited so holding, and we know of none. On the contrary, the very next section of the statute (section 2354) defines the term 'oath' as including 'an affirmation and every other mode authorized by law of...