Opinion
05-18-1886
PULLEN v. PULLEN.
W. Y. Johnson, for petitioner. G. C. Vanderbilt and W. D. Holt, for defendant.
W. Y. Johnson, for petitioner.
G. C. Vanderbilt and W. D. Holt, for defendant.
BIRD, V. C. During the examination of witnesses before the master a witness was called by the petitioner, and, after she laid her hand upon the Bible, was sworn as all the other witnesses in the cause were, except that she did not kiss the Bible. She said she had never kissed the book, and was told that it was not necessary. After objection, the master allowed the witness to be examined. Motion is now made to expunge the testimony of this witness because she did not kiss the Bible. This is the only objection. I do not think that this objection ought to prevail. If such omissions be enough to relieve the conscience, and to save from an indictment for perjury, then, indeed, would the cunning often deceive and mislead the court and jury; for the question is, is the conscience of the witness bound? To insure this, a solemn oath is administered. Almighty God, or the Ever-living God, or the like, is called upon by the witness to witness that he will speak the truth. The rest is form. The solemn invocation, affirmation, or declaration is the substance. All else is shadow. The witness in this case was sworn with her hand upon the book. There can be no doubt but that, if she made a false statement willfully, she is liable to an indictment for perjury.
But it is said that this may be true, and yet the conscience of the witness not be bound, which is the object of the oath, and the right of the party objecting. There is great force in this. It deserves attention. What is the application of this view to the case before me? Was the bath, as it was administered, calculated to bind the conscience? How did the witness herself regard it? She is presumably a Christian, for nothing to the contrary appears. She accepted the form of the oath asusually administered, without objections, except kissing the Bible. By this act, on her part, the court is justified in presuming, without further inquiry, that the witness intended that her conscience should be bound. And when asked why she did not kiss the Bible, she said she never had, and was told that that was not necessary. This disposes of this more important branch of the inquiry. Speaking from the forum of her conscience, she declared that it was not essential to kiss the book in order to impose upon herself all the obligations of an oath. This consideration relieves my mind from all doubt on the subject.
I have consulted and been aided by Whart. Ev. § 386; Tayl. Ev. § 1388, etc.; and The Merrimac, 1 Ben. 490. In this case a Chinaman was sworn on the Bible. He said he did not know the name of the book on which he was sworn; but that if he should tell anything which was not true the court would punish him; and, when asked if anything would happen to him after he was dead if he did not tell the truth, he said he "would go down there," making an emphatic gesture downward with his hand. His testimony was allowed to stand.
I will advise an order dismissing the appeal, and sustaining the ruling of the master.