Opinion
June Term, 1823.
When a witness comes before a tribunal to be sworn it is to be presumed that he has settled the point with himself in what manner he will be sworn, and he should make it known to the officer of the court; and should he be sworn with uplifted hand, though not conscientiously scrupulous of swearing on the Gospels, and depose falsely, he subjects himself to the pains and penalties of perjury.
APPEAL by the State from Daniel, J., at LINCOLN.
Seawell for defendant.
(459) The Attorney-General contra.
Indictment for perjury, which charged that the defendant "was sworn in due form of law." The jury found that the magistrate before whom the oath was taken swore the defendant with an uplifted hand, agreeably to the directions of the act of Assembly, but the magistrate did not tender the Gospels to the defendant before he was sworn, nor did the defendant request to be sworn in any other manner than as he was sworn, and, further, they found that the defendant was not conscientiously scrupulous of swearing on the Gospels; and on these facts the jury prayed the advice of the court. Daniel, J., who presided, was of opinion upon the special verdict that the defendant was not guilty of perjury, and rendered judgment accordingly, from which Mr. Solicitor Wilson for the State appealed.
Laws 1777, ch. 108, sec. 2, sets forth the usual mode in which oaths are commonly administered, according to which the hand of the person sworn is laid upon the Holy Evangelists, and the oath is concluded by kissing the book which contains them. By section 3 it is declared that where any person is conscientiously scrupulous of taking a book oath in the manner as before pointed out, he may be sworn with an uplifted hand, the manner and form of which is also pointed out. When a witness comes before any tribunal, it is to be presumed that he has settled the point with himself in what manner he will be qualified and sworn to give evidence. It cannot be expected that the court or clerk can be the keeper of his conscience. It was for the defendant Whisenhurst to make known to the justice whether he objected to or preferred being sworn with an uplifted hand. If he did not object, it must be taken that he not only acquiesced, but preferred that mode of being sworn. If a different rule is laid down, the consequence will be that every person who shall be guilty of perjury will ward off the punishment due to it who can find a jury that will say he is conscientiously scrupulous or not, as his case may require. A person may as well say, after being sworn in the common way, that he was conscientiously scrupulous, as to say that he was not conscientiously scrupulous after having been sworn with an uplifted hand. He had a choice, given by the law, before he (460) was sworn; when sworn he has made his election. Afterwards it is too late to retract.
I think judgment should be rendered for the State against the defendant upon the special verdict.
And of this opinion was the rest of the Court.
PER CURIAM. Reversed.