State v. Pray

• Citation: 179 P.2d 449,64 Nev. 179
• Decision Date: 09 April 1947
• Docket Number: 3461.
• Parties: STATE v. PRAY.
• Court: Supreme Court of Nevada

179 P.2d 449

64 Nev. 179

STATE v. PRAY.

No. 3461.

Supreme Court of Nevada

April 9, 1947

Appeal from Second Judicial District Court, Washoe County; Wm McKnight, Judge.

Harry G. Pray, also known as H.G. Pray, was convicted of subornation of perjury, and he appeals.

Reversed and remanded with directions.

Oliver C. Custer, of Reno, Clarence M. Hawkins, of Auburn, Cal., and H. R. Cooke, of Reno, for appellant.

Alan Bible, Atty. Gen., Geo. P. Annand and Homer Mooney, Deputy Attys. Gen., and Harold O. Taber, Dist. Atty., of Reno, and C. Lester Zahniser, Deputy Dist. Atty., of Sparks, for respondent.

HORSEY Justice.

The appellant was convicted, in Department No. 1 of the Second Judicial District Court of the State of Nevada in and for the County of Washoe, of the crime of subornation of perjury. His motion for a new trial was denied by said court, and he has appealed to this court from the judgment and from the order denying his motion for a new trial.

The appellant has presented seven assignments of erros. We have carefully considered each and all of those assignments and the numerous questions raised in their support, but will not deal with them herein in the order in which they have been presented, but, rather, in the order which seems to facilitate the reaching of a final determination of the case without passing upon matters not essential thereto.

In his assignment of error No. V(b), the appellant assigns that no public offense was charged in the information, in that it fails to allege the name of the officer before whom the oath, if any, was taken, and fails to allege that any oath was administered to Mrs. Bogdewicz relative to the matters alleged in count I of said information. Point two of appellant's opening brief presents in detail the particulars wherein the appellant contends that the information (count I) fails to state facts sufficient to constitute a public offense, among which are paragraph 1, 2 and 4, on page 13, as follows:

1. It fails to allege before whom the oath alleged to be false was taken;

2. It fails to allege that the unnamed person, or officer, before whom an oath, if any, was taken, had the necessary, or any, authority to administer said, or any, oath.

4. It fails to allege what oath is claimed to have been taken. We agree with counsel for appellant that the Nevada statute, Sec. 10864, N.C.L.1929, vol. 2, in all essential respects, is a re-enactment of the English Statute 23, Geo. II, Chap. 11.

Our said Nevada statute, Sec. 10864, is as follows: 'Perjury, What Deemed Sufficient. § 216. In an indictment or information for perjury or subornation of perjury, it is sufficient to set forth the substances of the controversy or matter in respect to which the offense was committed, and in what court, or before whom, the oath alleged to be false was taken, and that the court or the person before whom it was taken had authority to administer the same, with proper allegations as to the falsity of the matter of which the perjury is assigned; but the indictment or information need not set forth the pleadings, record or proceedings with which the oath is connected, or the commission or the authority of the court or person before whom the perjury was committed.'

It thus appears that among the allegations required in an indictment or information for perjury or subornation of perjury, to render such indictment or information sufficient, are:

1. That an oath alleged to be false was taken by the defendant;

2. In what court, or before whom, such oath alleged to be false was taken;

3. And that the court, or the person, before whom the oath was taken had authority to administer the same.

In 48 C.J. 875, in dealing with the necessity, in an indictment or information, of alleging in what court or before whom such oath alleged to be false was administered, it is stated: '* * * the general rule is that the indictment or information should, be proper designation, show by whom the oath was administered, and the omission of such showing is fatal.' Citing Hilliard v. United States, 5 Cir., 24 F.2d 99; Wilson v. State, 115 Ga. 206, 41 S.E. 696, 90 Am.St.Rep. 104; Kerr v. People, 42 Ill. 307; State v. Gross, 175 Ind. 597, 95 N.E. 117; Hitesman v. State,

48 Ind. 473; State v. Harlis, 33 La.Ann. 1172; State v. Thothos, 147 Mo.App. 596, 126 S.W. 797; Jefferson v. State, Tex.Cr.App., 29 S.W. 1090.

In the early Illinois case of Kerr v. People, supra, it is stated:

'The indictment omits to aver before whom the affidavit, upon which perjury is assigned, was made. This averment has always been considered as material and matter of substance. The accused has an undoubted right to be informed before whom it is alleged he took the oath charged to be false. He has the right in his defense to prove that the person administering the oath did not have legal and competent authority for the purpose. In the absence of such authority there could be no perjury, and hence the necessity of an averment as to who administered the oath, and that he had legal and competent authority for the purpose. This was the rule announced in the case of Morrell v. People, 32 Ill. 4998 and no reason has been presented why it should not govern this case. A party accused of crime should be fully advised by the indictment of all the material facts relied upon to establish the offense of which he stands charged. This indictment fails to do so, and was therefore materially defective.

'The court below therefore erred in refusing to quash the indictment, or to arrest the judgment; and the judgment of the court below must be reversed and the cause remanded.'

The case of State v. Shupe, 16 Iowa 36, is reported in 85 Am.Dec. 485, and in an exhaustive note, pages 488-501, is the following, on page 496: 'The name of the person or court administering the oath must be averred, and a variance in this respect is fatal: 2 Wharton's Crim.Law, sec. 1287; Kerr v. People, 42 Ill. 307; State v. Ellison, 8 Blackf. 225; Hitesman v. State, 48 Ind. 473; State v. Schultz, 57 Ind. 19; State v. Harlis, 33 La.Ann. 1172; Guston v. People, 61 Barb. 35; Geston v. People, 4 Lans. 487; State v. Street, 1 Murph., S.C., 156, 3 Am.Dec. 682; State v. Oppenheimer, 41 Tex. 82; United States v. Wilcox, Fed.Cas.No.16,692, 4 Blatchf. 391; and where the perjury is alleged to have been committed by a witness in the trial of an action in a certain court, it is sufficient to allege that the oath was taken in that court, without designating the officer by whom it was administered: State v. Spencer, 6 Or. 152.'

And in 20 Cal.Jur. p. 1015, it is stated: 'Sec. 9. In General.--At common law it was necessary, in an indictment for perjury, to set out the pleadings in the case in which the perjury was alleged to have been committed. This rule is abrogated in California, it being provided by the Penal Code that 'in an indictment or information for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court and before whom the oath alleged to be false was taken, and that the court, or the person before whom it was taken, had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment or information need not set forth the pleadings, record or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed'. * * *'

It is clear, from the language of our statute, Sec. 10864, N.C.L., and from the foregoing authorities and cases under similar statutes, that it is essential that, in the indictment or information, it be alleged 'in what court, or before whom, the oath alleged to be false was taken', and that an indictment or information failing to so allege does not state a public offense. The information in the instant case fails to so allege in count I, and it is the offense alleged in that count of which conviction was had.

As to the element of the offense as stated in the statute, 'that the court or the person before whom it was taken had authority to administer the same', the authorities, with practical unanimity, consider such allegation essential to a statement of a public offense. 20 Cal.Jur. 1015, supra, and the California cases cited, in footnote 11.

In 48 C.J. p. 874, it is stated: '(Sec. 121) 10. Authority to Administer Oath--a. In General. In an indictment or information for perjury or false swearing the authority of the officer or other person to administer the oath must be set forth by proper averment; and, if this is not done, the indictment or information will be fatally defective.'

In Wharton's Crim.Law, vol. 2, § 1554, p. 1818, is the following treatment of this question: 'Sec. 1554. Detailed Authority of Court Need Not be Given. By stat. 23 Geo. II. chap. 11, it is 'sufficient to set forth * * * by what court, or before whom the oath was taken, averring such court or person or persons to have competent authority to administer the same.' By the English practice, under the statute the nature of the authority need not be specified. In the United States, there are jurisdictions in which the relaxation of the common law affected by the statute has not been accepted; and where it has been held necessary to set forth all the facts essential to constitute the authority to administer the oath. But as a general rule, the principle of the statute has been accepted among us as virtually a part of the common law, though it must appear from the indictment that the officer administering the oath was of a class authorized by law to act in such capacity. Beyond this specification need not be pushed. Thus, it has been...