State v. Madigan

• Citation: 59 N.W. 490,57 Minn. 425
• Decision Date: 11 June 1894
• Docket Number: 8843
• Parties: State of Minnesota v. Michael M. Madigan
• Court: Minnesota Supreme Court

59 N.W. 490

57 Minn. 425

State of Minnesota v. Michael M. Madigan

No. 8843

Supreme Court of Minnesota

June 11, 1894

Argued May 24, 1894

Appeal by defendant, Michael M. Madigan, from an order of the District Court of Redwood County, B. F. Webber, J., made March 8, 1894, denying his motion for a new trial.

Defendant was indicted by the grand jury on November 18, 1893, for the crime of perjury in swearing before a Notary Public on April 5, 1893, to an affidavit stating that he was attorney for Peter N. Romnes and that Halver T. Helgeson and Ole H. Mogan were indebted to Romnes in the sum of $ 500. Helgeson and Mogan were partners dealing in merchandize at Belview and were insolvent and applied for advice to Madigan who was an attorney practising at Redwood Falls. He recommended them to make an assignment under Laws 1881, ch. 148, and overlooking laws 1889, ch. 30, amending that statute, had them make a note to Romnes for $ 500 antedated April 27, 1892, due November 1, 1892, on which he brought suit in Romnes' name April 5, 1893, and made this affidavit for and obtained a writ of attachment. They then assigned. They owed Romnes nothing and he never employed Madigan. The place of trial upon the indictment was on Madigan's motion changed to Brown County and he was on January 27, 1894, found guilty and sentenced to confinement at hard labor in the State Prison at Stillwater for the term of three years and three months. He afterwards on affidavits and a settled case moved the court for a new trial, but was denied and he appeals.

This disposes of all the questions raised on the appeal, and the order appealed from should be affirmed.

H. J Peck and Jos. A. Eckstein, for appellant.

The indictment does not allege that the defendant was an attorney at law. It should show that defendant was a person authorized to swear on this particular occasion, and in this particular proceeding. An oath taken by one not authorized to take it is an extrajudicial oath and perjury cannot be assigned upon it. State v. Helle, 2 Hill (S. C.) 290; United States v. Grottkau, 30 F. 672; State v Hamilton, 7 Mo. 300; Lamden v. State, 5 Humph. 82.

The statute provides what shall be put into an affidavit for an attachment, but it does not require it to state that it is made by the plaintiff, his agent or attorney. If it is in fact made by one or the other then the law has been complied with. That allegation was immaterial and the court erred in charging the jury it was material. 1 Hawkins P. C. 433, 435; State v. Lawson, 98 N. Car. 759; Miller v State, 15 Fla. 577; Wood v. People, 59 N.Y 117; Pollard v. People, 69 Ill. 148.

There is no evidence that the defendant was actually sworn except the jurat of the notary. The notary was on the witness stand, but was not asked the question. The defendant testified that he presented the affidavit to him and the notary signed it without any other act. The oath was not in fact administered. To constitute perjury the oath should have been administered and the proof should have been clear that the defendant was sworn. Case v. People, 76 N.Y. 242; United States v. McConaughy, 33 F. 168.

The court erred in allowing proof that Romnes did not sign the bond for attachment issued in the action and in receiving the bond in evidence. Hoberg v. State, 3 Minn. 262; State v. Hoyt, 13 Minn. 132.

The court erred in refusing a new trial on the ground of the misconduct of the jury during the trial. 1st. Because the jury separated after the charge of the court and before they retired to deliberate on their verdict. 2nd. Because of the intoxication of some of the jurors during the trial. Peterson v. Siglinger, 3 S. Dak. 255; State v. Bullard, 16 N.H. 139; Jones v. State, 13 Tex. 168; Ryan v. Harrow, 27 Ia. 494; Green v. State, 59 Miss. 501.

H. W. Childs, Attorney General, Geo. B. Edgerton, his assistant, and S. L. Pierce, for the state.

The fact that the person making the affidavit for an attachment is agent or attorney for the plaintiff must be made to appear, before the court can order the issuance of the writ. The person making the affidavit is required to state that he is the agent or attorney of the plaintiff in the affidavit, not because expressly required by the statute, but because required by manifest implication. Unless this fact is stated in the affidavit we submit that it is fatally defective. Wiley v. Aultman & Co., 53 Wis. 560; Miller v. Chicago, M. & St. P. Ry. Co., 58 Wis. 310; People ex rel. v. Sutherland, 81 N.Y. 1; Ex parte Bank of Monroe, 7 Hill, 177; Ex parte Shumway, 4 Denio, 258.

The indictment is sufficient if it appear from the facts set forth in it that the matter sworn to and upon which the perjury is assigned was material.

In prosecutions for perjury the jurat is prima facie evidence that the officer administered the oath. King v. Morris, 1 Leach 50; affirmed in 2 Burr. 1189; Regina v. Turner, 2 Car. & Kir. 735; Commonwealth v. Warden, 11 Met. 406; People ex rel. v. Sutherland, 81 N.Y. 1; O'Reilly v. People, 86 N.Y. 154.

Canty, J. Buck, J., absent, sick, took no part.

OPINION

Canty, J.

The defendant was indicted by the grand jury of Redwood county, and charged with the crime of perjury in making an affidavit for attachment in a case entitled "Peter N. Romnes against Halver T. Helgeson and Ole H. Mogan," commenced in the District Court of that county, and in which affidavit it is charged he deposed that he is the attorney of that plaintiff, and that a cause of action exists in favor of plaintiff and against defendants, the amount of which is $ 500, and the ground of that claim is a promissory note executed and delivered by defendants to plaintiff for that sum, of which note plaintiff is the holder; said indictment further charging that all of the same is false. The defendant was convicted and sentenced, and appeals to this court.

1. The first point made by appellant is that the indictment does not state facts sufficient to constitute a public offense because it does not allege that he was an attorney at law when he made this affidavit; that no one but the plaintiff, his agent or attorney, is authorized by statute to make such an affidavit; and that, if he was not authorized by statute to make the affidavit, it was not perjury to make it. This amounts to the proposition that the affidavit might be too false to be perjury; that his swearing falsely that he is the attorney of the plaintiff is not perjury, because it might also be a false statement that he is an attorney at all. This is not like the case of United States v. Grottkau, 30 F. 672, cited by appellant, where it affirmatively appeared on the face of the proceedings in which the affidavit was made that the person making it was prohibited by statute from doing so. Here it was made to appear by the alleged false statement itself, which is a part of the affidavit, that he was authorized to make that affidavit, and nothing appeared to the contrary in the attachment action or proceedings. The point is not well taken.

2. While the statute requires the affidavit for attachment to be made by the plaintiff, his agent or attorney, it does not require the affidavit to state that the person making it is such agent or attorney when made by him. It is contended by appellant that therefore the statement in the affidavit that he was attorney for the plaintiff, Romnes, was immaterial, and perjury cannot be predicated upon it. It does not necessarily follow that this statement was immaterial because not required to be stated in the affidavit. The statement was of a material fact which it was necessary to make appear affirmatively somewhere in the proceedings before a writ of attachment could rightfully issue, and it was proper to make it appear in this affidavit. Even if it appeared elsewhere, it might also appear in the affidavit as corroborative evidence of the fact, and in such case also it would be material.

3. While the indictment alleges that the affidavit is material, there is no formal averment that the parts of the affidavit assigned as perjury as aforesaid are material, and it is contended that for this reason the indictment is bad. Such formal averment is not necessary when it appears from the facts set out in the indictment that the matter assigned as perjury is material. It does so appear in this case. The indictment sets out the affidavit at length, and avers that it was made for the purpose of procuring an order for the issuance of a writ of attachment in that action then and there commenced. From these facts it sufficiently appears that the matter assigned as perjury was material. A writ of attachment would not issue until the things stated in this matter were made to appear.

4. It is contended that it does not sufficiently appear by the evidence that defendant was actually sworn to the affidavit. The notary public before whom the affidavit purports to have been made and sworn to, testified that defendant signed the affidavit, and he signed it and affixed his seal to it as notary, and identified the signatures and seal. The affidavit was then received in evidence. This was sufficient authentication. Besides, the notary was also the court commissioner, and defendant, on his own behalf, testified that he was retained by the plaintiff in that case, and had authority to make the affidavit. He testified: "I went down to the court commissioner's, and presented it there and had him make his order for attachment, as is shown by the files in this case. I had the affidavit all written out and signed, and everything, and I handed it to him, and I don't remember just exactly what remark I made or he made, but he says, 'That your signature?' And I said, 'Yes,' and he took the affidavit." He...