State v. Bixler

Irving, J., delivered the opinion of the Court. The appellee having been indicted in the Circuit Court for Carroll County, for perjury, demurred to the indictment, and his demurrer having been sustained, and judgment thereon having been given for his discharge, the State has brought the case to this Court by writ of error. Two grounds of error have been assigned in the petition for the writ, which are as follows, in substance: 1st. That the Court held the omission of the word “corruptly” from the indictment in charging the offence, was fatal; whereas -the State insists, that it was unnecessary, as the language used fully imported that the offence was “ corruptly ” committed. 2nd.

In that the Court held, that the indictment in alleging the offence, charged a conclusion of law, without sufficiently designating wherein the accused had corin-mit.tp.fi perjury, whereas the State contends the indictment is not obnoxious to this criticism. After alleging the official character of the registration officer and his duty; and the application of the accused for registration as a voter; and that the accused made oath that he would true answer make to all questions propounded by the registration offi ³⁵⁶ cer necessary to the ascertainment of his qualifications to be registered as a qualified voter, the indictment proceeds to make the charge in the following language, viz., “and the said Thomas O. Bixler having been then, to wit, on the day and year last aforesaid, there so sworn to such questioning as aforesaid, by said officer of registration, and in answer to such questioning as aforesaid by the said officer of registration, did then, to wit, on the day and year last aforesaid, there wilfully, knowingly, maliciously, and falsely say, depose, swear and represent on his oath aforesaid to the said officer of registration, among other things, in substance and to the effect that he had never been convicted of an infamous crime in said State, and not pardoned by the Governor of said State, and that he, the said Thomas C. Bixler had never been convicted of a crime, and served his sentence therefor in the Maryland penitentiary house in said State without having been pardoned for said crime by the Governor of said State; whereas, in truth and in fact, the said Thomas O. Bixler, before the day and year last aforesaid had been convicted of an infamous crime in said State, and had not been pardoned by the Governor of the said State therefor, and had been convicted of a crime in the said State, and had served out his sentence therefor in the penitentiary house of said State, and had not been pardoned by the Governor therefor ; as he the said Bixler on the day and year last aforesaid, then well knew, and so the jurors aforesaid, upon their oath aforesaid, do say, that the said Thomas O. Bixler, on the day and year last aforesaid, before the said officer of registration, who, then and there had competent power and authority to administer said oath to said Thomas C. Bixler, did in manner and form aforesaid, commit wilful and corrupt perjury,” &c., concluding “contrary to the form of the Act of Assembly in such case made and provided.” The first ground of error assigned, consists in the omission from the description of the oath, the word “corruptly” ³⁵⁷ whereas, it is only charged that the prisoner swore .“wilfully, knowingly, maliciously and falsely.” We are of opinion that these words necessarily involve “ corruptly.” It cannot have been made wilfully, knowingly, maliciously and falsely without being corruptly done; and it is with that view, that the act in the winding up of the indictment is characterized as “wilful and corrupt perjury.” The indictment is not at common law, but under the statute; and the statute declares, “ an affirmation or oath if made wilfully and falsely in any of the following cases, shall he deemed perjury; first in all cases where false swearing would he perjury at common law; secondly in all affidavits required by law to he taken” &c. Code, Art. 30, sec. 155. It is the “ wilfully and falsely” swearing to an untruth in any of the instances mentioned in the statute, which it defines as perjury and subjects to punishment as such.

As the allegation, in that regard, is made in the words of the statute, it is sufficient. 1 Wharton Am. Cr. Law, sec. 364; State vs. Elborne, 27 Md., 488 ; Cearfoss vs. The State, 42 Md., 406 ; Parkinson vs. The State, 14 Md., 198 . For the decision of this point, it is immaterial to determine under which of the classes named in the statute, this offence falls.

It is only necessary to inquire whether it is made as the statute requires, and we think it was sufficiently characterized. It is not out of place, however, for us to say in respect to that question that inasmuch as the Legislature has devolved upon the officers of registration, as well as the judges of election, the duty of exercising judgment in the discharge of their functions, their office is, under the decision of this Court in Bevan vs. Hoffman, 18 Md., 479 , and Friend vs. Hammill, 34 Md., 314 , in its nature judicial; and the proceeding before the officer of registration is a quasi judicial proceeding; hence, the case may very properly fall under the first class designated in the statute. The defendant in error contends, that inasmuch as section 35, of the Act of 1882, chapter 22, provides, that ³⁵⁸ fraudulently procuring registration as a voter, shall he a misdemeanor punishable by fine not exceeding five hundred dollars, or imprisonment not exceeding three years, or by both, and as it is hard to imagine such fraudulent procurement without a false oath being made, that this Act must he held to take the offence contemplated by this Act from out of the operation of the law defining and punishing perjury; and, that now, technical perjury cannot he committed in this way. The argument is enforced by the suggestion that otherwise a man might he punished twice under different indictments nominally for a different offence, hut in fact for one and the same act.

Of course a man must not he allowed to he punished twice for the same act, but charged in different form. Justice forbids this, and requires, that the Act of 1882, he so construed and administered as to prevent it. The State may elect how to proceed, and under which law. When a conviction is had, after such election, that