Territory v. Anderson

• Decision Date: 18 March 1889
• Citation: 2 Idaho 573,21 P. 417
• Parties: TERRITORY v. ANDERSON
• Court: Idaho Supreme Court

21 P. 417

2 Idaho 573

TERRITORY v. ANDERSON

Supreme Court of Idaho

March 18, 1889

PERJURY-SUFFICIENCY OF INDICTMENT.-Where an indictment states the defendant on his oath "falsely, wickedly, and feloniously did say swear, etc.," is sufficient where a person is charged with the crime of perjury.

ELECTION OATH-REGISTRAR CAN ADMINISTER.-Under the election law sections 504 and 505 of the Revised Statutes, power is conferred upon the registrar to administer the election oath.

APPEAL from District Court, Bingham County.

Affirmed.

J. H Hawley and J. Ed. Smith, for Appellant.

Richard Z. Johnson and Henry Z. Johnson, for the Territory.

Every objection that the defendant can waive is waived by failure to move in arrest of judgment, specially stating and pointing out the basis of the motion. (People v. Dick, 37 Cal. 277; Cannon v. United States, 116 U.S. 77, 6 S.Ct. 278.) The oath need not be taken in a judicial proceeding, but may be before any competent tribunal, officer or person in any case in which it may be law be administered; nor does it matter whether the deposition or affidavit is written and signed before or after the oath is administered. (People v. Kelly, 59 Cal. 372; Ex parte Carpenter, 64 Cal. 267, 30 P. 816.) The registrar was competent to administer the oath. (Rev. Stats., secs. 504, 505.) An averment of "knowingly" is not necessary, except in cases where the assignment of perjury is upon the statement by the accused of his belief, or denial of his belief, of the alleged false matter. (State v. Raymond, 20 Iowa 583; 3 Wharton's Criminal Law, 2261; 1 Barbour on Criminal Law, 200; 2 Chitty on Criminal Law, 312; 3 Russell on Crimes, 70.) "Knowingly" is not essential when "falsely," "willfully," and "corruptly" are used. (2 Wharton's Precedents of Indictments, p. 8, note, citing State v. Sleeper, 37 Vt. 122.) It is sufficient to charge generally that the false oath was material. (3 Wharton's Criminal Law, sec. 2263; 2 Wharton's Precedents of indictments, pp. 7, 8, note.)

LOGAN, J. Weir, C. J., and Berry, J., concur.

OPINION

LOGAN, J.

The defendant was indicted, tried, and convicted at the October term, 1888, of the district court of the third judicial district of Idaho, in and for Bingham county, of the crime of perjury. The crime was alleged to have been committed by reason of the defendant having taken an oath known as the "election oath" before one A. M. Carter, registrar of Rexburg precinct in said county, on September 15, 1888. The defendant contends that the indictment does not charge the commission of any offense by him, for the reason that A M. Carter was not authorized by statute to administer the oath complained of, and that it is not charged in the indictment that the defendant "knowingly" took such oath. Other points are raised by the defendant in his brief in regard to the charge of the court, and in regard to the refusal of the court to admit certain evidence which was offered by the defendant. These we cannot take notice of. No exception was taken to the charge of the court, and no requests were made to the court by the defendant to charge in his own behalf. The exception taken to the refusal of the court to admit certain testimony was not error. We have no bill of exceptions before us, and no evidence. The testimony was objected to as immaterial, and we have no means of ascertaining whether it was immaterial or not. In regard to the points raised as...