State v. Whitlock

• Decision Date: 09 December 1933
• Docket Number: 31327.
• Citation: 27 P.2d 262,138 Kan. 602
• Parties: STATE v. WHITLOCK. [*]
• Court: Kansas Supreme Court

27 P.2d 262

138 Kan. 602

STATE v. WHITLOCK. ^[*]

No. 31327.

Supreme Court of Kansas

December 9, 1933

Syllabus by the Court.

Oath to application required by administrative board, such as Soldiers' Compensation Board, pursuant to statute authorizing board to establish rules for proof of claim, is "legally administered" so as to furnish adequate basis for charge of perjury (Rev. St. 1923, 21--701, 73--101 et seq., as amended).

Where one of elements in proof of soldier's compensation claim is residence in Kansas at time of entering United States military service, question as to whether claimant had received compensation from any state or country held sufficiently "material" to constitute basis for charge of perjury (Rev. St. 1923, 21-- 701, 73--101 et seq. as amended).

1. An oath to an application required by an administrative board pursuant to a statute creating said board and authorizing it to make, establish, and publish rules and regulations for the proof of claims under the act is so far authorized by law as to furnish an adequate basis for a charge of perjury.

2. Where one of the elements in proof of a claim is residence in Kansas at the time of entering the military service of the United States, a question asking whether claimant had received compensation from any state or country was material.

Appeal from District Court, Geary County; C. M. Clark, Judge.

Ellis Whitlock was charged with perjury, and, from an order sustaining a motion to quash the information, the State appeals.

Order reversed, and cause remanded, with instructions.

Roland Boynton, Atty. Gen., E. E. Steerman, Asst. Atty. Gen., and James P. Coleman, Co. Atty., and I. M. Platt, Special Prosecutor, both of Junction City, for the State.

Elisha Scott and James A. Davis, both of Topeka, for appellee.

THIELE Justice.

This is an appeal from an order quashing an information charging perjury alleged to have been committed by the defendant in falsely stating in an affidavit made by the defendant to the Kansas Soldiers' Compensation Board, for the purpose of obtaining compensation, that he had not applied for any compensation from any state or country for service in the World War, when in truth and in fact he had applied for and received compensation from the state of Illinois, the question having been properly reserved by the state.

The statute defining perjury is R. S. 21-- 701, and recites as follows: "Every person who shall willfully and corruptly swear, testify or affirm falsely to any material matter, upon any oath or affirmation or declaration legally administered in any cause, matter or proceeding before any court, tribunal or public body or officer, shall be deemed guilty of perjury."

In support of the court's ruling, appellee urges that the claimed false statement was not given under an oath "legally administered"; that there is no provision of the statute requiring an oath in the particular circumstances here involved, and, even if it be held that false answers to the class of affidavits here involved constitute perjury, that the particular question and answer referred to in the information is not as to a material matter, there being only three questions involved in any bonus case: (1) The service of the applicant; (2) that he was a resident of Kansas at the time of entering the service; and (3) that he was honorably discharged.

Taking up first the question as to whether the oath was "legally administered," it will be observed that the act for compensation for veterans (Laws of 1921, c. 255 appearing as R. S. 73--101 et seq., as amended) provides in R. S. 73--105: "There is hereby created a board consisting of *** who are hereby charged with the administration of this law, and who shall, within thirty days after the taking effect of this act, make, establish and publish rules and regulations providing for the proof of claims under this act. ***"

Under this act, the board prescribed rules and regulations which included the form of affidavit having as a part thereof the question which it is claimed the defendant falsely answered. The rule with respect to whether an oath required by departmental regulation furnishes adequate basis for a charge of perjury is stated in 48 C. J. 843, as follows: "Oaths required by regulation of a governmental department, without aid of statute, are not so far authorized by law as to furnish the foundation of a prosecution for perjury. But oaths required by departmental regulation pursuant to statute expressly or by necessary implication authorizing such regulation are so far authorized by law as to furnish adequate basis for a charge of perjury." And see, also 21 R. C. L. 255.

Defendant points out a number of instances where the statutes expressly require oaths in specific instances, and argues that, in the absence of a statute expressly denouncing the particular act here complained of, the oath was voluntary, and in support cites authorities upholding the general rule that perjury cannot be predicated on an oath which is not required by law. Among the cases cited is United States v. George, 228 U.S. 14, 33 S.Ct. 412, 57 L.Ed. 712, which charged perjury in connection with proof of homestead entry. The statute required proof by two credible witnesses, not the claimant, and it was held that Congress had provided the "exact measure" of the claimant's obligation, and the department could not add to it. In United States v. Smull, 236 U.S. 405, 35 S.Ct. 349, 59 L.Ed. 641, however, it was held: "A charge of perjury under U.S.Crim.Code, § 125 [18 USCA § 231], providing that 'whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered *** shall wilfully and contrary to such oath state or subscribe any material matter which he does not believe to be true, is guilty of perjury,' may be based upon false statements in an affidavit required either expressly by an act of Congress, or by an authorized regulation of the General Land Office." Syl. par. 1. And United States v. George, supra, was distinguished. See, also, Maryland Casualty Co. v. United States, 251 U.S. 342, 40 S.Ct. 155, 64 L.Ed. 297, and United States v. Morehead, 243 U.S. 607, 614, 37 S.Ct. 458, 61 L.Ed. 926.

Counsel cite no decisions of this court, nor has our search disclosed any where the question here presented has been decided. It is apparent from the statute providing for compensation that the Legislature intended to leave all machinery for carrying out the act to be supplied by the Compensation Board...