State v. Eastman

151 P. 967, 77 Or. 522, 1915 Ore. LEXIS 146

Opinion

Mr. Justice McBride

delivered the opinion of the court.

The affidavit upon which the order to show cause was based was insufficient to confer jurisdiction upon the court to make the order. It is in the third person, and Section 829, L. O. L., provides: “In all affidavits and depositions, the witness must be made to speak in the first person.” The true test of the sufficiency of an affidavit is whether or not a charge of perjury could be based upon it: 1 R. C. L. 773; Miller v. Munson, 34 Wis. 579 (17 Am. Rep. 461). It is obvious •that it would be a good defense to a prosecution for perjury for making a false affidavit to show that the paper in question was not in legal contemplation an affidavit but something else. Proceedings of this character are quasi criminal, and the defendant is entitled to demand a substantial compliance with the statute before a penalty can be imposed which may result in his imprisonment.

The proceeding is dismissed. Dismissed.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.