§ 5392 Rev.Stat. enacts that
"Every person who, having taken an oath before a competent . . .
person in any case in which a law of the United States authorizes
an oath to be administered . . . that any written . . .
declaration, . . , or certificate by him subscribed is true,
willfully and contrary to such oath states or subscribes any
material matter which he does not believe to be true, is guilty of
perjury."
On an indictment against a clerk of a circuit and district court
for perjury in swearing before a district judge to his emolument
returns, and an account for services rendered to the United
States,
Held:
1. That the words "declaration" and "certificate," as employed
in this section of the Revised Statutes, are used in the ordinary
and popular sense to signify any statement of material matters of
fact sworn to and subscribed by the party charged.
2. That the returns and accounts set forth in the indictments
were written declarations within the meaning of § 5392
Rev.Stat.
3. That the written statement and oath of the party together
constitute the declaration or certificate of the statute for the
falsity of which a party is chargeable with perjury.
4. That the authority of the district judge to administer the
oath, not having been certified from below as a question of
division, cannot be considered.
Indictment for perjury. The perjury charged in the first count
was the taking an oath by Ambrose before the District Judge for the
Southern District of Ohio that a certain written declaration by him
subscribed was true, and the declaration as set out was a statement
subscribed to an account against the United States that the
services charged in the account had been actually rendered. The
indictment charged that they had not been rendered, and concluded
with the usual allegations. The second count charged that the
defendant had made a written return of fees and emoluments of his
office, and had appeared before the district judge and taken and
subscribed an oath, which is set forth at length, that the account
is just and true. The count charged that the return was false, set
forth in what
Page 108 U. S. 337
particulars it was so, and concluded with the usual allegations,
averring that the paper so subscribed was a written declaration.
The third count related to another return of fees and emoluments,
and averred that the written oath subscribed to it was a written
declaration. The fourth count related to an account for services,
and the perjury was charged as consisting in a false certificate
subscribed to it and sworn to before the district judge.
At the trial in the court below, before Mr. Justice Swyne and
Judge Baxter, the judges disagreed and certified the questions
which appear in the opinion of the Court.
Page 108 U. S. 338
MR. JUSTICE MILLER delivered the opinion of the Court.
This case comes before us on a certificate of division of
opinion between the judges holding the Circuit Court for the
Southern District of Ohio.
The defendant, who was clerk of the circuit and district courts
for that district, was indicted for perjury in swearing before the
district judge to his emolument returns and an account for services
rendered for the United States. The indictment consists of four
counts, framed under section 5392 of the Revised Statutes,
namely:
"Every person who, 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 that he will
testify, declare, depose, or certify truly, or that any written
testimony, declaration, deposition, or certificate by him
subscribed is true, willfully and contrary to such oath states or
subscribes any material matter which he does not believe to be
true, is guilty of perjury and shall be punished by a fine of not
more than $2,000, and by imprisonment at hard labor not more than
five years, and shall, moreover, thereafter be incapable of giving
testimony in any court of the United States until such time as the
judgment against him is reversed."
In the first three counts of the indictment, after setting out
the emolument returns and their verification by oath of the
defendant, the falsity of the counts, and the corrupt perjury
Page 108 U. S. 339
of the defendant in swearing to them, each count closes with
this language:
"And so the grand jurors aforesaid, on their oaths and
affirmations aforesaid, present that he, the said Thomas Ambrose,
having taken the said oath before the said officer who was
competent to administer the same that said written declaration by
him so subscribed as aforesaid was true, willfully and contrary to
said oath did then and there unlawfully subscribe said matters
heretofore set forth, which were material and which he did not
believe to be true, contrary to the form of the statute in such
case made and provided, and against the peace and dignity of the
United States of America."
A demurrer was filed to the whole indictment on the ground,
relied on here also, that the paper to the truth of which defendant
swears as it is set forth in the indictment is neither a
declaration, as it is charged to be in the first three counts, nor
a certificate, as charged in the last, within the meaning of those
words in § 5392. And in regard to this question as it applies to
each count, the judges of the court have sent us the following
certificate:
"
Circuit Court of the United States, Southern District of
Ohio"
"United States"
"v. 1,472 Indictment"
"Thomas Ambrose"
"This cause coming on to be heard before the Honorable Noah H.
Swayne and Honorable John Baxter, judges of said court, sitting
therein upon the demurrer of defendant to the indictment, certain
questions thereupon occurred on said hearing to be decided by the
court, to-wit:"
"First. Whether the instrument set forth in the first count of
indictment, and alleged therein to have been subscribed and sworn
to by the defendant, was a written declaration within the meaning
of section 5392 of the Revised Statutes of the United States."
"Second. Whether the instrument set forth in the second count of
the indictment, and alleged therein to have been subscribed and
sworn to by the defendant, was a written declaration within
Page 108 U. S. 340
the meaning of section 5392 of the Revised Statutes of the
United States."
"Third. Whether the instrument set forth in the third count of
indictment, and alleged therein to have been subscribed and sworn
to by the defendant, was a written declaration within the meaning
of section 5392 of the Revised Statutes of the United States."
"Fourth. Whether the instrument set forth in the fourth count of
the indictment, and alleged therein to have been subscribed and
sworn to by the defendant, was a written certificate within the
meaning of section 5392 of the Revised Statutes of the United
States."
"Upon which said questions the judges aforesaid were divided in
opinion."
"It is thereupon ordered that the said points of disagreement,
stated as above, under the direction of said judges, be certified
under the seal of the court to the Supreme Court of the United
States at their next session."
We do not think the words
declaration and
certificate, as used in the section of the Revised
Statutes on which this indictment is founded, are used as terms of
art, or in any technical sense, but are used in the ordinary and
popular sense to signify any statement of material matters of fact
sworn to and subscribed by the party charged.
Indeed, the word "declaration," as a word of art in the law, is
generally used to signify the plea by which a plaintiff in a suit
at law sets out his cause of action, as the word "complaint" is in
the same sense the technical name of a bill in chancery.
The fact that in many acts of Congress cited by counsel that
body has used the word to signify a statement in writing, whether
sworn to or not, as the foundation in many cases of official
action, or as preliminary to the assertion of rights by the party
who makes the declaration, is far from proving that the use of the
word in the act concerning perjury is limited to these cases. The
inference is strong the other way, for the word is used in the
cases cited in regard to so many and such diverse transactions,
that it can, in view of them all, have no other meaning than what
is attached to it in ordinary use.
Page 108 U. S. 341
And in all these instances it is equivalent to a statement of
facts material to the matter in hand.
The paper or statement of the emolument account, the falsity of
which is the foundation of the charge, is set out, and if, in the
charging clause of the indictment, it is described by a word
equally applicable to other instruments, no harm can come to
defendant, since he is precisely informed as to the identical
writing which is alleged to be false, and which he swore to be
true. Nor can he be mislead in any way, because what he says in
that writing is, in the correct use of language, his sworn
declaration on that subject.
But the perjury in all such cases consists in the oath by which
the party indicted swears to the truth of some matter, and this
oath may be said to be the false statement of the statute. Or, in
another sense, it may be said that the written statement and the
oath of the party that it is true, all constitute the
declaration or certificate of the statute, for the falsity
of which he is chargeable with perjury and liable to punishment.
The previously prepared writing, his oath to its truth, or the
whole taken together, is, in our opinion, a declaration of the
party within the meaning of the statute, and may be so well
described in the indictment.
We are quite satisfied that, as set forth in this indictment,
these are material matters under the statute, and if defendant did
not believe them to be true when he swore to and subscribed the
statement that they were true, that he is guilty of perjury, as
declared in section 5392, and we think the word "declaration"
correctly defines such statement. The same rule of construction is
applicable to the word "certificate" used in the statute.
It is attempted in argument to raise the question whether the
judge of the district court had authority to administer the oath in
which the perjury was committed. But it is clear that no such
question is certified to us by the judges of the circuit court, and
we cannot consider it.
United States v.
Briggs, 5 How. 208;
Dennistoun
v. Stewart, 18 How. 565.
We answer all the questions submitted to us in the affirmative,
and it will be so certified to the circuit court.
