and that from time to time you stated to the jury which was hearing that cause that there was no question but that it was during the month of April that you worked at the Lyceum Theater? A. Yes, sir. Q. Had you, at the time that you gave that testimony here in court last week, undertaken to verify the facts that you were at work at the Lyceum Theater April 3d to April 10th? A. No, sir; not at the time I testified. Q. You simply depended on your remembrance? A. Yes, sir. Q. And you now say that that is true; that is, that you did work there during that time? A. No, sir; I found that I was mistaken. Q. And to what extent? A. That it was in October that I had worked there, instead of April. Q. In October last year? A. Yes, sir. Q. How have you found that out since you testified last week, from October last year until April of this year? 1. By inquiring. Q. Yes; is it not true that in testifying last week that you said that you knew it was April 10th that you came down here and left the Lyceum Theater, because it 23 Saturday after the Easter of this year? A. Yes, sir." selves. In the Jackson Case, relied upon, there had been no occasion to question the witness' credibility until the court intervened, and by his line of questions plainly indicated a doubt as to the credibility of the witness' testimony, and thus presented the testimony of the witness to the jury in an unfavorable light. There could be no doubt in any of the cases cited that the conduct of the court constituted comment upon the testimony of the witnesses in each case unfavorable and prejudicial to the party calling the witnesses, and was undoubtedly in violation of the constitutional provision that the court shall not comment upon the evidence, other wise than by his charge to the jury, and then not in any such way as to indicate the belief of the court as to the nature of the testimony or its credibility. The matter complained of in this case, however, does not come within the constitutional prohibition or the rule announced in the cases cited, for the reason that here the witness had already discredited herself by cross-examination proper duct of the court in further examining the witness was for the purpose, undoubtedly, of ascertaining for himself whether the witness was certain as to the nature of the testimony given by her previously and was certain of the nature and effect of the testimony given by her in the present trial, so that no injustice might be done. After the foregoing examination by the court, this witness was examined in redirect by counsel for appellant, and further crossexamined by the prosecutor, and her testimony as to the inconsistency of her formerly conducted by the prosecutor, and the contestimony and the untruthfulness of her testimony was further confirmed. At the conelusion of the further cross-examination by the prosecutor, the court announced, "The jury may be excused at this time for ten minutes." After the jury had retired, the court announced that he would submit to the prosecuting attorney whether or not an information charging perjury should be filed against witness Brownlee, which was thereupon done by the prosecuting attorney, and witness was placed in the care of the sheriff, after which the jury was recalled. [2] Having been satisfied upon that question, and during the absence of the jury, he presented the matter to the prosecuting attorney as to whether or not the witness should be held for perjury. This also was justifiable, and, the witness having admitted the falsity of her testimony, the fact that she was placed under arrest for perjury for having given the admittedly false testimony could not in any sense be called prejudicial [1] Appellant contends that the court erred, in that he commented upon the evidence of the appellant's witness Brownlee, in violation of the rights of the appellant under article 4, § 16, of the state Constitution, by conducting a rigid and extended cross-exam-to the appellant. In other words, only in ination of said witness in the presence of the jury during the progress of the trial, which constituted comment prejudicial and detrimental to the rights of appellant. Appellant relies upon State v. Crotts, 22 Wash. 245, 60 Pac. 403, 40 Cyc. 2440, State v. De Pasquale, 39 Wash. 260, 81 Pac. 689, and State v. Jack-by, the conduct of the court in having such son, 83 Wash. 514, 145 Pac. 470. The rule stated from 40 Cyc. 2440, is as follows: case there could be any question as to the truth or falsity of the testimony was the appellant entitled to have it go to the jury, uninfluenced by any comment or opinion of the court. But where the testimony was admittedly false, and the witness discredited there witness held to answer for a charge of perjury could not in any way prejudice the ap"In a criminal case the action of the trial pellant. All that the appellant was entitled judge in subjecting the witnesses of defendant to was a decision of the jury upon conflictto a rigid and extended examination on the vital points of the defense, or in catechizing them ing testimony, or upon the testimony adduced at length as to their knowledge of the facts as as a whole, as to its truthfulness, credibility, to which they have testified, has a tendency to and reliability, and he was not entitled to discredit them, and is prejudicial error, requir-have a perjured witness treated as a reliable ing a new trial in case of conviction." In the Crotts and the De Pasquale Cases the circumstances were very similar. In both cases important witnesses for the defendant were testifying, and were cross-examined by the court in a way which plainly showed that the court discredited the testimony of the witnesses, and in neither of the cases had the witnesses in any way discredited them witness in order that he might possibly escape. [3] The evidence as a whole justified the verdict of the jury, and the further contention of appellant, that the judgment and sentence imposed by the court of four years' confinement in the Washington State Reformatory at Monroe is unreasonable, we do not consider of any consequence. The trial BIES. 235- CONSTRUCTION -NOTA Rem.& Bal. Code, § 8298, defining the powers of a notary public, being intended to declare the powers of a notary generally, there is no warrant in law for construing them more narrowly merely because they become important in a criminal prosecution. court in such case was charged with the re- 14. STATUTES [Ed. Note.-For other cases, see Statutes, The judgment is af- Cent. Dig. § 316; Dec. Dig. 235.] 1. PERJURY 5 - STATUTORY PROVISIONS "VOLUNTEER.' 5. STATUTES 241(1) - PENAL STATUTES CONSTRUCTION. - Although, where there is reasonable doubt as to the law, the courts will resolve that doubt in favor of the innocence of the party charged, where a penal statute is clear in its intent it will not admit of construction. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 322; Dec. Dig. 241(1).] Department 1. Appeal from Superior Court, King County; Mitchell Gilliam, Judge. Henry H. Howard was charged with the crime of perjury in the second degree. From a judgment sustaining a demurrer to the Reversed information, the State appeals. and remanded. Alfred H. Lundin, W. F. Meier, and John D. Carmody, all of Seattle, for the State. Eugene A. Childe, A. J. Falknor, and R. G. Sharpe, all of Seattle, for respondent. Under Rem. & Bal. Code, § 2353, providing that every person who, whether orally or in writing, and whether a volunteer or in a proceeding or investigation authorized by law, shall knowingly swear falsely concerning any matter whatsoever, shall be guilty of perjury in the second degree, the word "volunteer" being used in contradistinction to the case where a witness, "in a proceeding or investigation authorized by law," may be compelled to testify, making it the obvious intent of the statute to treat "voluntary" ELLIS, J. Defendant was charged in the false swearing "concerning any matter whatsoever" with the same severity as false swearing superior court of King county with the crime in a proceeding authorized by law, where defend- of perjury in the second degree. ant, as an officer of a bank, made oath to a formation, in substance, stated that on Defalse affidavit concerning the financial condition of the bank, he was guilty of perjury in the sec-cember 31, 1913, he subscribed and swore to the contents of an affidavit with intent that ond degree. the same be published as true, before a notary public of the state of Washington, duly commissioned and qualified, whereby he "did then and there willfully, unlaw5-STATUTE-CONSTRUCTION- fully, knowingly, falsely, feloniously, and [Ed. Note.-For other cases, see Perjury, Cent. Dig. 88 4-6, 35; Dec. Dig. 5. For other definitions, see Words and Phrases, First and Second Series, Volunteer.] 2. PERJURY "OATH." Under Rem. & Bal. Code, § 2353, defining perjury in the second degree, and section 2354, providing that the term "oath" shall include an affirmation and every other mode authorized by law of attesting the truth of that which is stated, and that a person who shall state any matter under oath shall be deemed to swear thereto, an "path" does not necessarily imply the existence of some form of inquiry required by law. [Ed. Note.-For other cases, see Perjury, Cent. Dig. §§ 4-6, 35; Dec. Dig. 5. For other definitions, see Words and Phrases, First and Second Series, Oath.] 3. AFFIDAVITS STATUTE. 5-AUTHORITY TO TAKE The in contrary to his oath swear that the con- The [1] It is conceded that there is no statute Under Rem. & Bal. Code, § 8298, defining of this state requiring an officer of a state the powers of a notary public and authorizing that officer "to take depositions and affidavits bank or any other person to make an affidavit and administer all oaths required by law to be of its financial condition such as that set forth administered," being construed to mean that an in the information. The sole question present"affidavit" is not synonymous with "oaths re-ed is this: Can a prosecution for perjury in quired by law to be administered," and it being presumed that the Legislature knew that it has the second degree be successfully predicated long been customary for notaries to take affida- upon a written statement in form an affidavits respecting business matters, a notary public vit, voluntarily made, but not required by is authorized to take an affidavit not required law? The question is one of first impression by law. in this state and merits careful consideration. Appellant takes the affirmative, relying upon the following statutory provisions as found in Rem. & Bal. Code: [Ed. Note.-For other cases, see Affidavits, shall be deemed to 'swear' thereto." "Sec. 8298. Every duly qualified notary public is authorized in any county in this state, 3. To take depositions and affidavits, and administer all oaths required by law to be admin istered. The respondent contends that in order to constitute perjury in the second degree under section 2353 the false oath, whether oral or in writing, must be either required by law or made in a proceeding or investigation authorized by law, citing State v. "Sec. 2353. Every person who, whether orally | A perusal of section 2353 shows that it or in writing, and whether as a volunteer or in a recognizes two kinds of swearing, namely, proceeding or investigation authorized by law, voluntary swearing and swearing where the shall knowingly swear falsely concerning any matter whatsoever, shall be guilty of perjury in the witness may be compelled to testify. The second degree and shall be punished by impris- word "volunteer" is plainly used in contraonment in the state penitentiary for not more distinction to the case where the witness, than five years, or by imprisonment in the coun- "in a proceeding or investigation authorized ty jail for not more than one year. "Sec. 2354. The term 'oath' shall include an af- by law," may be compelled to testify; othfirmation and every other mode authorized by law erwise the word "volunteer" would have of attesting the truth of that which is stated. A no meaning. The obvious intent of the statperson who shall state any matter under oath ute is to treat voluntary false swearing with the same severity as false swearing in a proceeding or investigation authorized by law. The statement of the two things in the When the disjunctive makes this plain. force of this disjunctive statement is once clearly caught, every shadow of ambiguity vanishes. It is at once manifest that the lation nor give a character to the oath of a words "authorized by law" neither have re"volunteer." They are part of the disjunctive phrase, and can only qualify the words Wilson, 83 Wash. 419, 145 Pac. 455. In that they are juxtaposed. The phrase "or in a "proceeding” and “investigation," with which case the different degrees of perjury are discussed at length. It is there pointed out law" may be eliminated without in the least proceeding or investigation authorized by that our statute (section 2351) defining per-changing or impairing the statute so far as jury in the first degree is but declaratory it applies to voluntary oaths. For the purof the common law, and is intended to apply in all cases where the false oath is taken pose of this discussion, therefore, the statute may be read as follows: and testimony given in or in aid of a judicial proceeding, and that section 2353 defines and subjects to punishment other offenses against truth. But in that case we did not attempt an exhaustive analysis of section 2353 or to define its exact limits. In that ease it was contended by the state that in so far as perjury may be committed "in a proceeding or investigation authorized by law” perjury in the second degree is included in a charge of perjury in the first degree. It was only in answer to that contention that we said: * as "Every person who, whether orally or in writing, *** shall volunteer a knowingly swear falsely concerning any matter whatsoever, shall be guilty of perjury in the second degree. So read, the statute clearly denounces false swearing by a volunteer, not alone concerning matters where an oath is required or authorized by law, but "concerning any matter, whatsoever." Plainer words could not be used to convey that meaning and no other. They compel the conclusion that an affidavit, though not required by law, may be made the basis of a prosecution for perjury in the second degree. "We cannot believe that the Legislature ever intended such consequences, but rather, by adopting section 2353, it meant to cover those [2] Respondent further argues, in suboffenses against truth which occur in extrajudi- stance, that an oath implies the existence cial proceedings and investigations and proceedings and investigations held by quasi judicial of some form of inquiry required by law, boards, commissions, and committees where a and that, an affidavit being a sworn written false oath could not be held to be perjury under statement, there can be no such thing as the theory that it operated as an 'obstruction of an affidavit unless made to be used in some justice' as the stream of justice flows in the or matter for courts of the state, or in proceedings ancillary proceeding, investigation, or in aid of the jurisdiction of the courts to try which provision is made by statute. No auand determine public and private controversies. thority is cited so holding, and we know of Proceedings or investigations authorized by law' none. On the contrary, the very next secmust be held to mean proceedings or investigations defined by or held under the warrant of the tion of the statute (section 2354) defines the legislative body as distinguished from an offense term "oath" as including "an affirmation recognized as criminal at the common law, and every other mode authorized by law of which is adopted in so far as it is not incon- attesting the truth of that which is stated," sistent as an integral part of our Criminal Code." and, in order that the mode of attestation be not confined with what is stated, it adds, That this was not intended as marking the definite limits of the crime of perjury in the second degree as defined by section 2353, is plainly apparent from the much broader language immediately following it: "It is evident that section 2353 was passed to cover, by general statute, offenses which in some states have been called false swearing, and made punishable eo nomine by statute." "A person who shall state any matter under oath' shall be deemed to 'swear' thereto." There is no possible implication that any matter means only such matters as are required by law to be so stated. The plain purpose of section 2353 is the prevention by punishment of reckless, voluntary, false swearing upon the faith of which others may act to their injury, as sworn bank statements, and statements of well as to prevent false swearing in extra- | the financial condition of other corporations. Judicial proceedings or investigations and We must assume that the Legislature when in proceedings or investigations authorized it enacted the above statute was possessed of by law held by quasi judicial boards, com- knowledge of this wide and customary use of mittees, and the like having the power to the affidavit in business matters generally. compel the attendance of witnesses. The It is matter of common knowledge also that Legislature evidently recognized that there notaries have long been in the habit of tak is as much moral turpitude and may be as ing affidavits of this character, and this, too, great resulting injury in the one case as the Legislature must be presumed to have the other. When the extensive use of sworn known. This is not a criminal statute callstatements and affidavits in the business ing for a strict construction, but a statute world, though not required by law, is re- touching the powers of an officer whose emmembered, when the prior law, the mischief, ployment in the taking of affidavits touching and the remedy are considered, it is clear purely business matters, though not required that the Legislature used the broad lan- by law, had long existed by custom. Obviguage of our statute advisedly to the end ously the Legislature in passing this law did that the sanctity of the oath might be pre- not intend to restrict but to recognize that served, and that no willfully false oath con- custom. Such is the plain, natural, and praccerning any matter whatsoever might be tical meaning of the statute itself. Such used to another's detriment with impunity. was the plain purpose of using the word "affidavits" as well as "oaths required by law to be administered." [3] But respondent earnestly contends that a purported oath is not an oath unless taken before some person authorized by law to take it. This must be conceded. But his further equally earnest contention that in this state a notary public is not authorized to take an affidavit not required by law cannot be sustained. The statute (Rem. & Bal. Code, & 8298) defining the powers of a notary public authorizes that officer "to take depositions and affidavits, and administer all oaths required by law to be administered." It does not say "all other oaths required by law" so as to include affidavits in that category. It clearly treats "oaths required by law to be administered" and "affidavits" not as synonymous nor as the one including the other; otherwise the use of the word "affidavits" would be meaningless, tautological, and worse than unnecessary because serving merely to confuse. Both in fact and in law an affidavit is something different from an oral oath. It is defined as follows: "An 'affidavit is a statement in writing declared to be true by the party making it and certified to have been sworn to before him by the officer who takes it." 1 Words and Phrases (2d Ser.) 147. "Affidavit. A statement or declaration reduced to writing, and sworn to or affirmed before some officer who has authority to administer an oath or affirmation." 1 Bouvier's Law Dictionary (Rawle's 3d Revision) 158. "Affidavit. A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath." Black's Law Dictionary (2d Ed.) 46. An affidavit is not only a written oath, but a statement of the things sworn to. It is matter of common knowledge that from time almost immemorial affidavits have been used in business, though not required by law, whenever a solemn, formal asseveration upon which others might rely was intended. Familiar examples are affidavits touching titles to property, affidavits of financial condition for the purpose of obtaining credit, af [4] The statute being intended to declare the powers of a notary generally, there is no warrant either in law or logic for construing them more narrowly merely because they become important in a criminal prosecution. Respondent, relying upon our decision in State v. Dallagiovanna, 69 Wash. 84, 124 Pac. 209, 40 L. R. A. (N. S.) 249, urges that the question is no longer an open one in this state, and that we there decided in so many words that "a notary public cannot administer any oath with any binding force in law, except such oath is 'required by law." In that case, however, we were speaking of an oral oath, not of an affidavit, and the statute is clear that it is only in connection with such oaths that the authority of the notary is limited to oaths required by law to be administered. The language there used must be confined to oaths of the character there involved. Respondent's argument ignores the fact that the statute uses the word "affidavits" in defining the notary's authority in the premises. As pointed out in State v. Wilson, supra, the crime of perjury in the second degree is closely analogous to the statutory crime of false swearing in some of the other states. Under the Penal Code of Texas false swearing is defined as follows: "If any person shall deliberately and willfully, under oath or affirmation legally administered, make a false statement by a voluntary declaration or affidavit, which is not required by law or made in the course of a judicial proceeding, he is guilty of false swearing. *" Article 209, White's Penal Code (Texas). The only difference between that statute and our statute defining perjury in the second degree is that, in addition to voluntary oaths or affidavits not required by law there denounced, our statute includes any voluntary oath or affidavit and any oath or affidavit made or taken in a proceeding or investigation authorized by law. Under the State, 22 Tex. App. 372, 3 S. W. 662, that a county clerk who was authorized by statute "to administer all oaths and affirmations, and proached the crossing where the accident occurred held for the jury. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1161; Dec. Dig. 350(7).] to take affidavits and depositions, to be used as provided by law in any of the courts," and who was also generally empowered to take affidavits, could take a voluntary affida- In an action against a railroad for a death vit not required by law, and that the maker caused by collision of its train with an automoof such an affidavit before the clerk, which bile, whether deceased was negligent in failing to discover the approach of the train until his affidavit was false in fact, was liable to proscar passed up an incline from behind a buildecution, not for perjury, but for false swear-ing to within 18 to 20 feet of the track at a ing. The court said: crossing held for the jury. "The distinction between perjury and false swearing is this, viz.: If the false statement be made in an oath or affidavit 'required by law, or made in 'the course of a judicial proceeding,' the offense is perjury; if the false voluntary oath or affidavit is 'not required by law or made in the course of a judicial proceeding,' then it is false swearing." [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1170; Dec. Dig. 350(17).] 4. RAILROADS 328(1)-INJURIES AT CROSSING-EXISTENCE OF OBSTRUCTION. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1057, 1060, 1069; Dec. Dig. 328(1).] In an action against a railroad for a death caused by collision of its train with an automobile, the existence of a frame house near the track at the crossing where the accident occurSince, as we have seen, our statute defin- red, obstructing the view, was an element to be ing perjury in the second degree includes vol- taken into consideration in determining the degree of care to be exercised by decedent, imposuntary false swearing "concerning any mat-ing a like degree of care on defendant. ter whatsoever," the Davidson Case furnishes direct authority for the holding, not only that a notary under a statute such as ours is authorized to take affidavits not required by law, but that the voluntary maker of a false affidavit before a notary is in this state subject to prosecution for perjury in the second degree. See, also, O'Bryan v. State, 27 Tex. App. 339, 11 S. W. 443; Urben v. State (Tex. Cr. R.) 178 S. W. 514. A review of the many authorities cited by respondent in support of the general rule that a charge of perjury cannot be based upon an oath not required by law would be a bootless task, since the various statutes involved were evidently not like ours. [5] It is true, as urged by respondent, that if there is a reasonable doubt as to the law the courts will resolve that doubt in favor of the innocence of the party charged, but our statute punishing voluntary false swearing "concerning any matter whatsoever" is too clear in its intent to admit of construction. 5. RAILROADS 327(1)—INJURIES AT CROSSING-DUTY TO LOOK FOR TRAIN. positive duty to look for a train as soon as he becomes aware that he is about to cross the track. One about to cross a railroad track is under [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1043, 1045; Dec. Dig. 327(1).] 6. RAILROADS 333(2) - INJURIES AT CROSSING CONTRIBUTORY NEGLIGENCE. The driver of an automobile who drove up a 12 per cent. incline to a railway crossing on intermediate gear at a speed of 10 to 15 miles an hour, under which circumstances the car could have been stopped in from 3 to 5 feet, but failed to stop, though there was an approaching train in view not more than 300 feet away, was negligent as matter of law in attempting to cross in front of the train. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1081; Dec. Dig. 333(2).] 7. RAILROADS 350(1) INJURIES AT CROSSING QUESTION FOR JURY. The question whether the automobile in fact stood on the track for any appreciable The judgment is reversed, and the cause is length of time before being struck was for the remanded for further proceedings. jury. [Ed. Note.-For other cases, see Railroads, MORRIS, C. J., and FULLERTON, CHAD- Cent. Dig. § 1152; Dec. Dig. 350(1).] WICK, and MOUNT, JJ., concur. 8. RAILROADS 351(22)-INJURIES AT CROSSING-INSTRUCTION-LAST CLEAR CHANCE. In an action against a railroad for a death caused by a collision of its train with an autothat, if the jury found deceased was guilty of mobile, the instruction on last clear chance negligence in driving his automobile onto the railroad crossing, and that the car in some way became stalled, "so that deceased was unable to go across the track, and that, while in such dantherefrom," the engineer and fireman on defendgerous position, and unable to extricate himself ant's train saw the automobile stopped on the crossing in time to have stopped the train, etc., was proper as telling the jury that before the doctrine applied the jury must find that deceased's negligence had culminated in a situation of peril from which the exercise of ordinary care on his own part would not extricate him. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1214; Dec. Dig. 351(22).] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |