United States v. McConaughy

• Decision Date: 29 December 1887
• Citation: 33 F. 168
• Parties: UNITED STATES v. McCONAUGHY.
• Court: U.S. District Court — District of Oregon

33 F. 168

UNITED STATES v. McCONAUGHY.

United States District Court, D. Oregon.

December 29, 1887

Syllabus by the Court

In an indictment for perjury, it must distinctly appear that the defendant was sworn.

An allegation that the defendant did 'depose and swear' to the truth of the answers contained in the deposition following, does not show that the defendant was 'sworn' to the truth of said answers.

One may 'swear' who is not 'sworn;' and in such case the oath is not administered, but self-imposed, and the swearer incurs no legal liability thereabout.

Lewis L. McArthur, for the United States.

Cyrus A. Dolph, for defendants.

DEADY J.

The indictment in this case was filed April 5, 1887, and charges the defendant with the crime of perjury, committed on August 19, 1885, in a deposition given before the register and receiver of the United States land-office for the Lakeview land-district, in making the final proof in the matter of his desert-land entry in said district under the act of March 3 1877, (19 St. 377.) The defendant demurs to the indictment for that (1) the same does not state facts sufficient to constitute a crime against the United States; and (2) the court has no jurisdiction of the subject-matter. On the argument the only point made by counsel for the demurrer is that the indictment does not show that the defendant was sworn. After stating the pendency of the proceeding before the register and receiver, the indictment alleges that the defendant offered himself as a witness therein on his own behalf, and 'did subscribe his name to a deposition in the words and figures following: (here follows the deposition, with a certificate of the receiver thereto that the same was subscribed and sworn to before me this nineteenth day of August, 1885.) ' The indictment then alleges that the defendant did in said proceeding willfully and corruptly 'depose and swear' that the answers which he had made to the questions in said deposition contained were, to the best of his knowledge and belief true; that the 'said oath' in said proceeding 'taken as aforesaid' by said defendant, 'was then and there duly administered' to him by said register and receiver.

In an indictment for perjury it must be directly stated in some form of apt words that the defendant was sworn. It is not sufficient that it so appears by inference or argument. 1 Whart.Crim.Law, § 1287; 2 Bish.Crim.Proc.§ 912; State v Divoll, 44 N.Y. 142. The indictment in this case only alleges that the defendant did 'depose and swear.' All that is subsequently said about ...