State v. Thornhill

163 P. 145, 99 Kan. 808

• Court: Supreme Court of Kansas
• Decided: February 10, 1917
• Docket: No. 20,815
• Status: Published

Opinion

The opinion of the court was delivered by

Porter, J.:

The defendant was charged with giving false testimony at a preliminary examination. The was convicted of perjury and appeals.

1. The examining magistrate was a witness and testified that he was a justice of the peace of Sedan township in Chautauqua county, and had held the office continuously for fifteen years. It is urged that this was not the best evidence, and that the record should have been produced showing that he was duly elected and qualified. The contention is quite technical. Every day in our courts, state, county, city and township officers are permitted to testify to their official capacity without producing the record of their election or appointment. Ordinarily, when the official comes from a foreign jurisdiction he is required to produce some certificate showing his official capacity. (24 Cyc. 415.)

2. Besides, the justice was at least a de facto officer, and a de facto title has been held sufficient to authorize the administration of the oath upon which the perjury is assigned. (The State v. Williams, 61 Kan. 739, 60 Pac. 1050; 30 Cyc. 1416.)

3. Evidence of the examining magistrate as to his residence, his official character, and that the false testimony was given in a proceeding before ‘him, was sufficient proof of the venue. It was not necessary to prove that defendant held up his right hand when he took the oath. The justice testified to the form of the oath administered, which in substance follows the language of the statute. (Civ. Code, § 345.)

We are unable to discover anything substantial in the claims of error, and the judgment is affirmed.