United States v. Ambrose (108 U.S. 336)/Opinion of the Court

ase 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 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 section 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.)

(1472) UNITED STATES v. THOMAS AMBROSE.

Indictment.

'This cause coming on to be heard before the Hon. NOAH H.     SWAYNE and Hon, 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 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. 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. U.S. v. Briggs, 5 How. 208; Dennistoun v. Stewart, 18 How. 568.

We answer all the questions submitted to us in the affirmative, and it will be so certified to the circuit court.