United States v. Grottkau

• Decision Date: 12 March 1887
• Citation: 30 F. 672
• Parties: UNITED STATES v. GROTTKAU.
• Court: U.S. District Court — Eastern District of Wisconsin

30 F. 672

UNITED STATES v. GROTTKAU.

United States District Court, E.D. Wisconsin.

March 12, 1887

A. K Delaney, for the United States.

N. S Murphey, for defendant.

DYER J., (orally.)

At a late session of the grand jury, the defendant was indicted for perjury under section 5395 of the Revised Statutes of the United States, which provides that, 'in all cases where any oath or affidavit is made or taken under or by virtue of any law relating to the naturalization of aliens, or in any proceedings under such laws, any person taking or making such oath or affidavit who knowingly swears falsely, shall be punished by imprisonment not more than five years, nor less than one year, and by a fine of not more than one thousand dollars. ' The indictment contains a single court, from which it appears that the perjury assigned consisted in swearing, at the time of the defendant's application to become a citizen of the United States, that he had resided within the state of Wisconsin for one year next preceding his application. Various objections to the insufficiency of the indictment have been made and argued by counsel, only one of which the court finds it necessary to consider.

Section 2165 of the Revised Statutes, relating to the subject of naturalization, and to which reference must be had in connection with section 5395, in determining the question in judgment, provides that an alien may be admitted to become a citizen of the United States in the following manner, and not otherwise:

'First. He shall declare on oath, before a circuit or district court of the United States, or supreme court of the territories, or a court of record of any of the states having common-law jurisdiction, and a seal and clerk, two years at least prior to his admission, that it is bona fide his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly by name to the prince, potentate, state, or sovereignty of which the alien may be at the time a citizen or subject. Second. He shall, at the time of his application to be admitted, declare on oath, before some one of the courts above specified, that he will support the constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty, and particularly by name to the prince potentate, state, or sovereignty of which he was before a citizen or subject; which proceedings shall be recorded by the clerk of the court. Third. It shall be made to appear to the satisfaction of the court admitting such alien that he has resided within the United States five years at least, and within the state or territory where such court is at the time held, one year at least, and that during that time he has behaved as a man of a good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same; but the oath of the applicant shall be in no case allowed to prove his residence.' This section contains other provisions upon the subject of naturalization, but these are all that it is necessary here to consider. It is to be observed, in the first place, that, under section 5395, to make a case of perjury, the oath or affidavit must be made or taken under or by virtue of the law relating to the naturalization of aliens. This, I take it, means an oath which the law relating to naturalization requires or authorizes the party to take. That I think is the fair sense and meaning of the language used in section 5395. Now, recurring again to section 2165 of the naturalization statute, we find that the second subdivision of that section expressly declares what the applicant himself shall state under oath, when he makes his application to be admitted to become a citizen. That subdivision provides that he shall declare on oath, before some one of the courts specified, that he will support the constitution, and that he renounces and abjures all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty, etc. These are the declarations which the statute thus expressly requires him personally to make under oath, as a preliminary to his admission as a citizen of the United States. Then, when we come to the third subdivision, we find that its language is not that he shall declare on oath certain facts in relation to his residence, but that it shall be made to appear to the satisfaction of the court admitting such alien that he has resided within the United States five years at least, and within the state or territory where such court is at the time held one year at least; and the closing sentence in the section declares, without qualification, that the oath of the applicant shall in no case be allowed to prove his residence. This is, in effect, a prohibitory clause, forbidding the taking of the oath of the applicant himself as proof of his residence; the evident object of the law being to require other proof than that of the oath of the applicant upon that subject.

This being the statutory provision as enacted by congress, we have to apply to the case, in the interpretation of the statute, the familiar and elementary principle that, to constitute perjury, the oath or affirmation must be material, or, as it is stated in the opinion of the court in the case of Silver v. State, 17 Ohio, 368, it must be required by or have some effect in law. Further, it is elementary that perjury cannot be assigned of an oath which is extrajudicial. Now, applying this rule of law, in connection with the statutory provision cited, to this indictment, how stands the case? As we have seen, the oath which the defendant is alleged to have taken, and which is set out in the indictment, and therein alleged to have constituted the perjury complained of, is an oath that he had resided within the state of Wisconsin one year prior to the making of the application for naturalization. And we find that this was an oath which the statute expressly declared the court should not receive-- for that is its effect-- as proof of residence. This statutory declaration, that the oath of the applicant shall in no case be allowed to prove his residence, is not equivalent to a statement that the oath shall not be sufficient proof of residence. It is, as I interpret it, absolutely prohibitory, and makes such an oath, when taken by the applicant, of no weight in law as proof of residence. This is the construction which it seems to me the court must place upon the language used. The things which the applicant in such a case is required to himself state on oath are those contained in the second subdivision of the section.

But when the question of residence arises, congress has provided that certain facts shall appear in relation thereto from some other source than the oath of the applicant; the language of the...