Page:Federal Reporter, 1st Series, Volume 6.djvu/55

 UNITED STATES V. BAEB. 43 �was true, and mlfully and contrary to said oath therein stated material matter whiich he did not believe to be true. Upon a trial he was eonvicted, and he now moves for a new trial upoh the ground that there was no evidence showing that an oath was taken. �The argument made in suijpoti, of the motion is based upon the assumption that the only evidence to show that an oath was administered to the accused was the testimony of the notary that he said to the accused, "Do you solemnly swear to this affid'avit, and is it true?" To which the ac- cused replied that he did, without lifting up his hand or plac- ing his hand upon a Bible. �Upon this assumption it bas been contended that, inas- much as no appeal to God was made either by word or deed, no oath was taken. But the assumption upon which this argument rests is unfounded. In another portion of his tes- timony the notary testified that there was but one legal form of administering an oath in this state, and that such form was, "Do you solemnly swear that the above affidavit sub- scribed by you is true, in the presence of the ever-living God?" and he then testified: "I used that form substan- tially. I don't know as I put in the 'presence of the ever- living God.' I am a little conscientious about that. I am a little caref ul about using it. " Question. " Caref ul to use it ?" Answer. " Yes. " This testimony of the notary, coupled with the certificate given at the time to the effect that the affidavit was sworn to before him, is sufficient evidence to sustain a finding that an oath was administered to the accused. �The notary was an pfficer of the state of New York before whom an oath may be taken by virtue of section 1778 of the Eevised Statutes. The statute of the state regulating the form of oath to be administered by its officers is as follows : �"Section 82. The usual mode of administering oaths now practiced by the person who swears, laying bis hand upon and kissing the gospels, shall be observed in ail cases in which an oath may be administered according to law, except in the cases hereinafter otherwise provided. ��� �