Canty, J.
The defendant v?as indicted by the grand jury of Bed-wood county, and charged with the crime of perjury in making an affidavit for attachment in a case entitled “Peter N. Romnes against Halver T. Helgeson and Ole H. Mogan,” commenced in the District Court of that county, and in which affidavit it is charged he deposed that he is the attorney of that plaintiff, and that a cause of action exists in favor of plaintiff and against defendants, the amount of which is $500, and the ground of that claim is a promissory note executed and delivered by defendants to plaintiff for that sum, of which note plaintiff is the holder; said indictment further charging [429]*429that all of the same is false. The defendant was convicted and sentenced, and appeals to this court.
1. The first point made by appellant is that the indictment does not state facts sufficient to constitute a public offense because it does not allege that he was an attorney at law when he made this affidavit; that no one but the plaintiff, his agent or attorney, is authorized by statute to make such an affidavit; and that, if he was not authorized by statute to make the affidavit, it was not perjury to make it. This amounts to the proposition that the affidavit might be too false to be perjury; that his swearing falsely that he is the attorney of the plaintiff is not perjury, because it might also be a false statement that he is an attorney at all. ' This is not like the case of United States v. Grottkau, 30 Fed. Rep. 672, cited by appellant, where it affirmatively appeared on the face of the proceedings in which the affidavit was made that the person making it was prohibited by statute from doing so. Here it was made to appear by the alleged false statement itself, which is a part of the affidavit, that he was authorized to make that affidavit, and nothing appeared to the contrary in the attachment action or proceedings. The point is not well taken.
2. While the statute requires the affidavit for attachment to be made by the plaintiff, his agent or attorney, it does not require the affidavit to state that the person making it is such agent or attorney when made by him. It is contended by appellant that therefore the statement in the affidavit that he was attorney for the plaintiff, Eomnes, was immaterial, and perjury cannot be predicated upon it. It does not necessarily follow that this statement was immaterial because not required to be stated in the affidavit. The statement was of a material fact which it was necessary to make appear affirmatively somewhere in the proceedings before a writ of attachment could rightfully issue, and it was proper to make it appear in this affidavit. Even if it appeared elsewhere, it might also appear in the affidavit as corroborative evidence of the fact, and in such case also it would be material.
3. While the indictment alleges that the affidavit is material, there is no formal averment that the parts of the affidavit assigned as perjury as aforesaid are material, and it is contended that for this reason the indictment is bad. Such formal averment is not neces[430]*430sary when it appears from the facts set out in the indictment that the matter assigned as perjury is material. It does so appear in this case. The indictment sets out the affidavit at length, and-avers that it was made for the purpose of procuring an order for the issuance of a writ of attachment in that action then and there commenced. From these facts it sufficiently appears that the matter assigned as perjury was material. A writ of attachment would not issue until the things stated in this matter were made to appear.
4. It is contended that it does not sufficiently appear by the evidence that defendant was actually sworn to the affidavit. The notary public before whom the affidavit purports to have been made and sworn to, testified that defendant signed the affidavit, and he signed it and affixed his seal to it as notary, and identified the signatures and seal. The affidavit was then received in evidence. This was sufficient authentication. Besides, the notary was also the court commissioner, and defendant, on his own behalf, testified that he was retained by the plaintiff in that case, and had authority to make the affidavit. He testified: “I went down to the court commissioner’s, and presented it there, and had him make his order for attachment, as is shown by the files in this case. I had the affidavit all written out and signed, and everything, and I handed it to him, and I don’t remember just exactly what remark I made or he made, but he says, ‘That your signature?’ And I said, ‘Yes,’ and he took the affidavit.” He further testified that he paid the commissioner his fee, who, as notary, signed the affidavit for attachment, and, as commissioner, signed the order for attachment. “I had the attachment proceedings made out, and I went up to the clerk of court, and filed them there, and had the writ of attachment issued. Q. Now, Mr. Madigan, at the time yon made this affidavit, state whether or not you made it in good faith, believing it to be true when you wrote it. A. I certainly did. If I ever did anything in good faith, it was that. I wouldn’t be foolish enough to go and commit perjury for nothing at all, nor for any sum of money. I wouldn’t do it.” It seems to us that this testimony, both expressly and by every implication, admits that this affidavit was actually sworn to.
Neither do we wish to be understood as holding that it was necessary to prove by oral evidence that the affidavit had been sworn to. In King v. Morris, 1 Leach, 50, reported also in 2 Burrow, 1189, the [431]*431defendant was convicted before Lord Mansfield on the mere proof that the signature subscribed to the affidavit was in Ms bandwriting, and that the jurat was subscribed by the officer before whom the affidavit purported to be sworn to, but no further proof was given to identify the defendant as the person sworn, or that any person was so sworn. It was held by the court that the evidence was sufficient. See, also, Reg. v. Turner, 2 Car. & Kir. 732. It is true that such presumption may be rebutted by affirmative evidence showing that in fact the affidavit was not sworn to. Case v. People, 76 N. Y. 242. Merely subscribing to the affidavit is not being sworn to it. O'Reilly v. People, 86 N. Y. 154. But it is well settled that, when the signatures are proved as above stated, it is presumed that it was actually sworn to by the person whose signature is subscribed as affiant.
5. Bomnes, the plaintiff in that action, testified, on behalf of the state, that he never retained defendant to commence that action, never authorized it to be commenced, never was in defendant’s law office, and never had any business with him until long after the time that action was commenced. Defendant on his own behalf, and some of his witnesses, testified that Bomnes was in his office at that time, and also gave evidence tending to prove that Bomnes then and there signed the bond for attachment in that action. Defendant testified that he signed the bond as a witness, and took the acknowledgment of Bomnes to it, all of which appears by the bond; that he procured the approval by the court commissioner of the bond, and filed it with the clerk of the court as a part of the attachment proceedings.
On rebuttal, Bomnes testified that he did not sign the bond, and Helgeson, one of the defendants in that action, testified that he signed the name of Bomnes to the bond in defendant’s office, and that Bomnes was not there.
Free access — add to your briefcase to read the full text and ask questions with AI
Canty, J.
The defendant v?as indicted by the grand jury of Bed-wood county, and charged with the crime of perjury in making an affidavit for attachment in a case entitled “Peter N. Romnes against Halver T. Helgeson and Ole H. Mogan,” commenced in the District Court of that county, and in which affidavit it is charged he deposed that he is the attorney of that plaintiff, and that a cause of action exists in favor of plaintiff and against defendants, the amount of which is $500, and the ground of that claim is a promissory note executed and delivered by defendants to plaintiff for that sum, of which note plaintiff is the holder; said indictment further charging [429]*429that all of the same is false. The defendant was convicted and sentenced, and appeals to this court.
1. The first point made by appellant is that the indictment does not state facts sufficient to constitute a public offense because it does not allege that he was an attorney at law when he made this affidavit; that no one but the plaintiff, his agent or attorney, is authorized by statute to make such an affidavit; and that, if he was not authorized by statute to make the affidavit, it was not perjury to make it. This amounts to the proposition that the affidavit might be too false to be perjury; that his swearing falsely that he is the attorney of the plaintiff is not perjury, because it might also be a false statement that he is an attorney at all. ' This is not like the case of United States v. Grottkau, 30 Fed. Rep. 672, cited by appellant, where it affirmatively appeared on the face of the proceedings in which the affidavit was made that the person making it was prohibited by statute from doing so. Here it was made to appear by the alleged false statement itself, which is a part of the affidavit, that he was authorized to make that affidavit, and nothing appeared to the contrary in the attachment action or proceedings. The point is not well taken.
2. While the statute requires the affidavit for attachment to be made by the plaintiff, his agent or attorney, it does not require the affidavit to state that the person making it is such agent or attorney when made by him. It is contended by appellant that therefore the statement in the affidavit that he was attorney for the plaintiff, Eomnes, was immaterial, and perjury cannot be predicated upon it. It does not necessarily follow that this statement was immaterial because not required to be stated in the affidavit. The statement was of a material fact which it was necessary to make appear affirmatively somewhere in the proceedings before a writ of attachment could rightfully issue, and it was proper to make it appear in this affidavit. Even if it appeared elsewhere, it might also appear in the affidavit as corroborative evidence of the fact, and in such case also it would be material.
3. While the indictment alleges that the affidavit is material, there is no formal averment that the parts of the affidavit assigned as perjury as aforesaid are material, and it is contended that for this reason the indictment is bad. Such formal averment is not neces[430]*430sary when it appears from the facts set out in the indictment that the matter assigned as perjury is material. It does so appear in this case. The indictment sets out the affidavit at length, and-avers that it was made for the purpose of procuring an order for the issuance of a writ of attachment in that action then and there commenced. From these facts it sufficiently appears that the matter assigned as perjury was material. A writ of attachment would not issue until the things stated in this matter were made to appear.
4. It is contended that it does not sufficiently appear by the evidence that defendant was actually sworn to the affidavit. The notary public before whom the affidavit purports to have been made and sworn to, testified that defendant signed the affidavit, and he signed it and affixed his seal to it as notary, and identified the signatures and seal. The affidavit was then received in evidence. This was sufficient authentication. Besides, the notary was also the court commissioner, and defendant, on his own behalf, testified that he was retained by the plaintiff in that case, and had authority to make the affidavit. He testified: “I went down to the court commissioner’s, and presented it there, and had him make his order for attachment, as is shown by the files in this case. I had the affidavit all written out and signed, and everything, and I handed it to him, and I don’t remember just exactly what remark I made or he made, but he says, ‘That your signature?’ And I said, ‘Yes,’ and he took the affidavit.” He further testified that he paid the commissioner his fee, who, as notary, signed the affidavit for attachment, and, as commissioner, signed the order for attachment. “I had the attachment proceedings made out, and I went up to the clerk of court, and filed them there, and had the writ of attachment issued. Q. Now, Mr. Madigan, at the time yon made this affidavit, state whether or not you made it in good faith, believing it to be true when you wrote it. A. I certainly did. If I ever did anything in good faith, it was that. I wouldn’t be foolish enough to go and commit perjury for nothing at all, nor for any sum of money. I wouldn’t do it.” It seems to us that this testimony, both expressly and by every implication, admits that this affidavit was actually sworn to.
Neither do we wish to be understood as holding that it was necessary to prove by oral evidence that the affidavit had been sworn to. In King v. Morris, 1 Leach, 50, reported also in 2 Burrow, 1189, the [431]*431defendant was convicted before Lord Mansfield on the mere proof that the signature subscribed to the affidavit was in Ms bandwriting, and that the jurat was subscribed by the officer before whom the affidavit purported to be sworn to, but no further proof was given to identify the defendant as the person sworn, or that any person was so sworn. It was held by the court that the evidence was sufficient. See, also, Reg. v. Turner, 2 Car. & Kir. 732. It is true that such presumption may be rebutted by affirmative evidence showing that in fact the affidavit was not sworn to. Case v. People, 76 N. Y. 242. Merely subscribing to the affidavit is not being sworn to it. O'Reilly v. People, 86 N. Y. 154. But it is well settled that, when the signatures are proved as above stated, it is presumed that it was actually sworn to by the person whose signature is subscribed as affiant.
5. Bomnes, the plaintiff in that action, testified, on behalf of the state, that he never retained defendant to commence that action, never authorized it to be commenced, never was in defendant’s law office, and never had any business with him until long after the time that action was commenced. Defendant on his own behalf, and some of his witnesses, testified that Bomnes was in his office at that time, and also gave evidence tending to prove that Bomnes then and there signed the bond for attachment in that action. Defendant testified that he signed the bond as a witness, and took the acknowledgment of Bomnes to it, all of which appears by the bond; that he procured the approval by the court commissioner of the bond, and filed it with the clerk of the court as a part of the attachment proceedings.
On rebuttal, Bomnes testified that he did not sign the bond, and Helgeson, one of the defendants in that action, testified that he signed the name of Bomnes to the bond in defendant’s office, and that Bomnes was not there. Other evidence was offered that the bond was a forgery, and thereupon it was received in evidence. All of this evidence was received against defendant’s objection and exception, and is now assigned as error-.
We are of the opinion that this evidence was competent. It certainly was material on the question of whether or not defendant was the attorney of Bomnes. If Bomnes had signed this bond, it was [432]*432a si rong circumstance to prove that defendant was his attorney. If he had not signed it, but the bond was a forgery, it was a strong circumstance to prove that defendant was not his attorney. If the evidence tends to prove the commission of the crime charged, it is not incompetent because it also tends to prove the commission of another crime.
6. We find no error in the charge of the court.
7. On the motion for a new trial, affidavits were read, stating that, after the jury were charged, a recess was taken by the court for about ten minutes, and the jury were allowed to and did separate. This is all denied by counter affidavits, and stated by the court below to be untrue, both on the affidavits and of his own knowledge. This finding is conclusive that no such recess was taken, and that the jury did not separate.
8. Misconduct of the jury was one of the. grounds of the motion for a new trial, and affidavits were read in support of the motion, stating that two or three of the jurors were intoxicated, — some of them every night during the trial. This is all denied by a number of counter affidavits, and the court finds it is untrue, and that finding is conclusive.
But one of the jurors in his counter affidavit admits that he drank intoxicating liquor during the trial. “Affiant is in the habit of taking a drink of beer or wine when he feels like it, but never drinks spirituous liquors for other than medicinal purposes; that affiant never mixes his drinks; that, during the trial, affiant did not take more than five drinks in any one day, and, when he did drink, there was a long time between drinks; that affiant has never been intoxicated or under the influence of intoxicating liquors with the exception of one occasion, when affiant was in the army.”
The question now arises: Is the drinking of intoxicating liquor» by a juror during the trial ground per se for a new trial? There are a few cases which so hold, but they are contrary to the great weight of authority, which is that such drinking raises more or less of a presumption against the verdict, which may be rebutted by showing that the juror was not in fact intoxicated. The cases of State v. Bullard, 16 N. H. 139, and Jones v. State, 13 Tex. 168, cited by appellant, were cases where the jurors procured the liquor after [433]*433they had retired to consider their verdict. In the case of Ryan v. Harrow, 27 Iowa, 494, cited by appellant, the statement of facts in the commencement of the opinion is as follows: “During the progress of the trial, and after the cause was submitted to the jury, and before they had agreed upon a verdict, two or more of the jury drank intoxicating liquors.” It seems to us that, where the intoxicating liquor is procured and drunk after the jury have retired to consider their verdict, it is a very different question. It then involves the misconduct of both the jurors and the officer having them in custody, and will easily raise a presumption of positive bad faith. But if the juror is intoxicated while performing his duties in open court, the parties have an opportunity to observe it and bring it to the attention of the judge. It is also a different question if the juror drank at the expense of the prevailing party, or those working in his interest, which was also claimed by the affidavits and denied by the counter affidavits in this case, and found against appellant by the court below! If, as in this case, the court below finds that the juror was not intoxicated, and the moving party is not in fact prejudiced, the verdict should be allowed to stand. This position is not in conflict with the ease of State v. Parrant, 16 Minn. 178 (Gil. 157), which was a trial for murder in the first degree. In such a case, if the jury are allowed to separate at ail during the trial, their conduct while separated is subject to closer scrutiny.
9. That one of the jurors did not understand the English language is also made a ground for a new trial. The affidavits on this question were also conflicting; and for this reason, and also for the reason that it was a ground for challenge, and, by the exercise of reasonable care, the defendant might have discovered the fact, and availed himself of his right to reject the juror when the jury was being impaneled, the point is not well taken.
This disposes of all the questions raised on the appeal, and the order appealed from should be affirmed. So ordered.
Buck, J., absent, sick, took no part.
(Opinion published 59 N. W. 490.)