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and that from time to time you stated to the selves. In the Jackson Case, relied upon,

jury which was hearing that cause that there was no question but that it was during the month of April that you worked at the Lyceum Theater? A. Yes, sir. Q. Had you, at the time that you gave that testimony here in court last week, undertaken to verify the facts that you were at work at the Lyceum Theater April 3d to April 10th? A. No, sir; not at the time I testified. Q. You simply depended on your remembrance? A. Yes, sir. Q. And you now say that that is true; that is, that you did work there during that time? A. No, sir; I found that I was mistaken. Q. And to what extent? A. That it was in October that I had worked there, instead of April. Q. In October last year? A. Yes, sir. Q. How have you found that out since you testified last week, from October last year until April of this year? 1. By inquiring. Q. Yes; is it not true that in testifying last week that you said that you knew it was April 10th that you came down here and left the Lyceum Theater, because it was Saturday after the Easter of this year? A. Yes, sir."

After the foregoing examination by the court, this witness was examined in redirect by counsel for appellant, and further crossexamined by the prosecutor, and her testimony as to the inconsistency of her former testimony and the untruthfulness of her testimony was further confirmed. At the conelusion of the further cross-examination by the prosecutor, the court announced, "The jury may be excused at this time for ten minutes." After the jury had retired, the court announced that he would submit to the prosecuting attorney whether or not an information charging perjury should be filed against witness Brownlee, which was thereupon done by the prosecuting attorney, and witness was placed in the care of the sheriff, after which the jury was recalled.

[1] Appellant contends that the court erred, in that he commented upon the evidence of the appellant's witness Brownlee, in violation of the rights of the appellant under article 4, § 16, of the state Constitution, by conducting a rigid and extended cross-examination of said witness in the presence of the jury during the progress of the trial, which constituted comment prejudicial and detrimental to the rights of appellant. Appellant relies upon State v. Crotts, 22 Wash. 245, 60 Рас. 403, 40 Cyc. 2440, State v. De Pasquale, 39 Wash. 260, 81 Pac. 689, and State v. Jackson, 83 Wash. 514, 145 Pac. 470. The rule stated from 40 Сус. 2440, is as follows:

"In a criminal case the action of the trial judge in subjecting the witnesses of defendant to a rigid and extended examination on the

vital points of the defense, or in catechizing them at length as to their knowledge of the facts as to which they have testified, has a tendency to discredit them, and is prejudicial error, requiring a new trial in case of conviction."

In the Crotts and the De Pasquale Cases the circumstances were very similar. In both cases important witnesses for the defendant were testifying, and were cross-examined by the court in a way which plainly showed that the court discredited the testimony of the witnesses, and in neither of the cases had the witnesses in any way discredited them

there had been no occasion to question the witness' credibility until the court intervened, and by his line of questions plainly indicated a doubt as to the credibility of the witness' testimony, and thus presented the testimony of the witness to the jury in an unfavorable light. There could be no doubt in any of the cases cited that the conduct of the court constituted comment upon the testimony of the witnesses in each case unfavorable and prejudicial to the party calling the witnesses, and was undoubtedly in violation of the constitutional provision that the court shall not comment upon the evidence, otherwise than by his charge to the jury, and then not in any such way as to indicate the belief of the court as to the nature of the testimony or its credibility. The matter complained of in this case, however, does not come within the constitutional prohibition or the rule announced in the cases cited, for the reason that here the witness had already discredited herself by cross-examination properly conducted by the prosecutor, and the conduct of the court in further examining the witness was for the purpose, undoubtedly, of ascertaining for himself whether the witness was certain as to the nature of the testimony given by her previously and was certain of the nature and effect of the testimony given by her in the present trial, so that no injustice might be done.

[2] Having been satisfied upon that question, and during the absence of the jury, he presented the matter to the prosecuting attorney as to whether or not the witness should be held for perjury. This also was justifiable, and, the witness having admitted the falsity of her testimony, the fact that she was placed under arrest for perjury for having given the admittedly false testimony could not in any sense be called prejudicial to the appellant. In other words, only in case there could be any question as to the truth or falsity of the testimony was the appellant entitled to have it go to the jury, uninfluenced by any comment or opinion of the court. But where the testimony was admittedly false, and the witness discredited thereby, the conduct of the court in having such witness held to answer for a charge of perjury could not in any way prejudice the appellant. All that the appellant was entitled to was a decision of the jury upon conflicting testimony, or upon the testimony adduced

as a whole, as to its truthfulness, credibility, and reliability, and he was not entitled to have a perjured witness treated as a reliable witness in order that he might possibly escape.

[3] The evidence as a whole justified the verdict of the jury, and the further contention of appellant, that the judgment and sentence imposed by the court of four years' confinement in the Washington State Reformatory at Monroe is unreasonable, we do not consider of any consequence. The trial

1

court in such case was charged with the re- 14. STATUTES 235 - CONSTRUCTION - NOTA

sponsibility of determining the punishment

to be inflicted according to the conditions and circumstances of the case and of the accused, and there does not seem to have been any abuse of discretion by his honor in assessing the punishment.

We find no error.

firmed.

The judgment is af

MORRIS, C. J., and PARKER, BAUSMAN and MAIN, JJ., concur.

(91 Wash. 481)

STATE v. HOWARD. (No. 13361.) (Supreme Court of Washington. June 13,

1916.)

1. PERJURY 5 - STATUTORY PROVISIONS "VOLUNTEER."

Under Rem. & Bal. Code, § 2353, providing that every person who, whether orally or in writing, and whether a volunteer or in a proceeding or investigation authorized by law, shall knowingly swear falsely concerning any matter whatsoever, shall be guilty of perjury in the second degree, the word "volunteer" being used in contradistinction to the case where a witness, "in a proceeding or investigation authorized by law," may be compelled to testify, making it the obvious intent of the statute to treat "voluntary" false swearing "concerning any matter whatsoever" with the same severity as false swearing in a proceeding authorized by law, where defendant, as an officer of a bank, made oath to a false affidavit concerning the financial condition of the bank, he was guilty of perjury in the second degree.

RIES.

Rem. & Bal. Code, § 8298, defining the powers of a notary public, being intended to declare the powers of a notary generally, there is no warrant in law for construing them more narrowly merely because they become important in a criminal prosecution.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 316; Dec. Dig. 235.]

5. STATUTES 241(1) - PENAL STATUTES CONSTRUCTION.

Although, where there is reasonable doubt as to the law, the courts will resolve that doubt in favor of the innocence of the party charged, where a penal statute is clear in its intent it will not admit of construction.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 322; Dec. Dig. 241(1).]

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Henry H. Howard was charged with the crime of perjury in the second degree. From a judgment sustaining a demurrer to the information, the State appeals. Reversed and remanded.

Alfred H. Lundin, W. F. Meier, and John D. Carmody, all of Seattle, for the State. Eugene A. Childe, A. J. Falknor, and R. G. Sharpe, all of Seattle, for respondent.

ELLIS, J. Defendant was charged in the superior court of King county with the crime of perjury in the second degree. The information, in substance, stated that on December 31, 1913, he subscribed and swore to the contents of an affidavit with intent that the same be published as true, before a notary public of the state of Washington, duly commissioned and qualified, whereby he "did then and there willfully, unlaw5-STATUTE-CONSTRUCTION- | fully, knowingly, falsely, feloniously, and

[Ed. Note. For other cases, see Perjury, Cent. Dig. §§ 4-6, 35; Dec. Dig. 5.

For other definitions, see Words and Phrases, First and Second Series, Volunteer.]

2. PERJURY

"OATH."

Under Rem. & Bal. Code, § 2353, defining perjury in the second degree, and section 2354, providing that the term "oath" shall include an affirmation and every other mode authorized by law of attesting the truth of that which is stated, and that a person who shall state any matter under oath shall be deemed to swear thereto, an "oath" does not necessarily imply the existence of some form of inquiry required by law.

[Ed. Note. For other cases, see Perjury, Cent. Dig. §§ 4-6, 35; Dec. Dig. 5.

For other definitions, see Words and Phrases, First and Second Series, Oath.]

contrary to his oath swear that the con-
dition of Christopher, Knickerbocker & How-
ard, private bank, at the close of business
on December 31, 1913, was as follows," set-
ting out the statement of the resources and
liabilities of the bank as stated in the af-
fidavit, and charging that the statement was
false in many specified particulars.
court sustained a demurrer to the informa-
tion on the ground that it did not state
facts sufficient to charge a crime. The state
abiding by its pleading, the proceeding was

3. AFFIDAVITS - AUTHORITY TO TAKE - dismissed. The state appeals.
STATUTE.

The

[1] It is conceded that there is no statute

Under Rem. & Bal. Code, § 8298, defining of this state requiring an officer of a state

bank or any other person to make an affidavit of its financial condition such as that set forth in the information. The sole question presented is this: Can a prosecution for perjury in

the powers of a notary public and authorizing that officer "to take depositions and affidavits and administer all oaths required by law to be administered," being construed to mean that an "affidavit" is not synonymous with "oaths required by law to be administered," and it being presumed that the Legislature knew that it has the second degree be successfully predicated long been customary for notaries to take affida- upon a written statement in form an affidavits respecting business matters, a notary public vit, voluntarily made, but not required by is authorized to take an affidavit not required law? The question is one of first impression by law.

[Ed. Note. For other cases, see Affidavits,
Cent. Dig. §§ 18-27; Dec. Dig. 5.
For other definitions, see Words and Phrases,
First and Second Series, Affidavit.]

in this state and merits careful consideration. Appellant takes the affirmative, relying upon the following statutory provisions as found in Rem. & Bal. Code:

"Sec. 2353. Every person who, whether orally A perusal of section 2353 shows that it or in writing, and whether as a volunteer or in a recognizes two kinds of swearing, namely, proceeding or investigation authorized by law, voluntary swearing and swearing where the shall knowingly swear falsely concerning any matter whatsoever, shall be guilty of perjury in the second degree and shall be punished by imprisonment in the state penitentiary for not more than five years, or by imprisonment in the county jail for not more than one year.

"Sec. 2354. The term 'oath' shall include an affirmation and every other mode authorized by law of attesting the truth of that which is stated. A person who shall state any matter under oath shall be deemed to 'swear' thereto."

"Sec. 8298. Every duly qualified notary public is authorized in any county in this state,

**

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witness may be compelled to testify. The word "volunteer" is plainly used in contradistinction to the case where the witness, "in a proceeding or investigation authorized by law," may be compelled to testify; otherwise the word "volunteer" would have no meaning. The obvious intent of the statute is to treat voluntary false swearing with the same severity as false swearing in a proceeding or investigation authorized by law. The statement of the two things in the disjunctive makes this plain. When the force of this disjunctive statement is once

clearly caught, every shadow of ambiguity

vanishes. It is at once manifest that the words "authorized by law" neither have relation nor give a character to the oath of a

oral or in writing, must be either required "volunteer." They are part of the disjunc

by law or made in a proceeding or investigation authorized by law, citing State v. Wilson, 83 Wash, 419, 145 Pac. 455. In that case the different degrees of perjury are discussed at length. It is there pointed out

that our statute (section 2351) defining perjury in the first degree is but declaratory of the common law, and is intended to apply in all cases where the false oath is taken and testimony given in or in aid of a judicial proceeding, and that section 2353 defines and subjects to punishment other offenses against truth. But in that case we did not attempt an exhaustive analysis of section 2353 or to define its exact limits. In that ease it was contended by the state that in so far as perjury may be committed "in a proceeding or investigation authorized by law" perjury in the second degree is included in a charge of perjury in the first degree. It was only in answer to that contention that we said:

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So read, the statute clearly denounces false swearing by a volunteer, not alone concerning matters where an oath is required or authorized by law, but "concerning any matter whatsoever." Plainer words could not be used to convey that meaning and no other. They compel the conclusion that an affidavit, though not required by law, may be made the basis of a prosecution for perjury in the second degree.

[2] Respondent further argues, in sub

"We cannot believe that the Legislature ever intended such consequences, but rather, by adopting section 2353, it meant to cover those offenses against truth which occur in extrajudi- stance, that an oath implies the existence cial proceedings and investigations and proceed of some form of inquiry required by law, ings and investigations held by quasi judicial boards, commissions, and committees where a and that, an affidavit being a sworn written false oath could not be held to be perjury under statement, there can be no such thing as

the theory that it operated as an 'obstruction of justice' as the stream of justice flows in the courts of the state, or in proceedings ancillary or in aid of the jurisdiction of the courts to try and determine public and private controversies. 'Proceedings or investigations authorized by law' must be held to mean proceedings or investigations defined by or held under the warrant of the legislative body as distinguished from an offense recognized as criminal at the common law, which is adopted in so far as it is not incon

sistent as an integral part of our Criminal

Code."

That this was not intended as marking the definite limits of the crime of perjury in the second degree as defined by section 2353, is plainly apparent from the much broader language immediately following it:

"It is evident that section 2353 was passed to cover, by general statute, offenses which in some states have been called false swearing, and made punishable eo nomine by statute."

an affidavit unless made to be used in some

proceeding, investigation, or matter for which provision is made by statute. No authority is cited so holding, and we know of none. On the contrary, the very next section of the statute (section 2354) defines the term "oath" as including "an affirmation and every other mode authorized by law of attesting the truth of that which is stated," and, in order that the mode of attestation be not confined with what is stated, it adds, "A person who shall state any matter under 'oath' shall be deemed to 'swear' thereto." There is no possible implication that any matter means only such matters as are required by law to be so stated.

The plain purpose of section 2353 is the prevention by punishment of reckless, voluntary, false swearing upon the faith of sworn bank statements, and statements of the financial condition of other corporations. We must assume that the Legislature when it enacted the above statute was possessed of knowledge of this wide and customary use of the affidavit in business matters generally.

which others may act to their injury, as well as to prevent false swearing in extraJudicial proceedings or investigations and in proceedings or investigations authorized by law held by quasi judicial boards, committees, and the like having the power to

compel the attendance of witnesses. The It is matter of common knowledge also that Legislature evidently recognized that there notaries have long been in the habit of tak

is as much moral turpitude and may be as great resulting injury in the one case as the other. When the extensive use of sworn statements and affidavits in the business world, though not required by law, is remembered, when the prior law, the mischief, and the remedy are considered, it is clear that the Legislature used the broad language of our statute advisedly to the end that the sanctity of the oath might be preserved, and that no willfully false oath concerning any matter whatsoever might be used to another's detriment with impunity.

[3] But respondent earnestly contends that a purported oath is not an oath unless taken before some person authorized by law to take it. This must be conceded. But his further equally earnest contention that in this state a notary public is not authorized to take an affidavit not required by law cannot be sustained. The statute (Rem. & Bal. Code, § 8298) defining the powers of a notary public authorizes that officer "to take depositions and affidavits, and administer all oaths required by law to be administered." It does not say "all other oaths required by law" so as to include affidavits in that category. It clearly treats "oaths required by law to be administered" and "affidavits" not as synonymous nor as the one including the other; otherwise the use of the word "affidavits" would be meaningless, tautological, and worse than unnecessary because serving merely to confuse. Both in fact and in law an affidavit is something different from an oral oath. It is defined as follows:

"An 'affidavit is a statement in writing declared to be true by the party making it and certified to have been sworn to before him by the officer who takes it." 1 Words and Phrases (2d Ser.) 147.

"Affidavit. A statement or declaration reduced to writing, and sworn to or affirmed before some officer who has authority to administer an oath or affirmation." 1 Bouvier's Law Dictionary (Rawle's 3d Revision) 158.

"Affidavit. A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath." Black's Law Dictionary (2d Ed.) 46.

ing affidavits of this character, and this, too, the Legislature must be presumed to have known. This is not a criminal statute calling for a strict construction, but a statute touching the powers of an officer whose employment in the taking of affidavits touching purely business matters, though not required by law, had long existed by custom. Obviously the Legislature in passing this law did not intend to restrict but to recognize that custom. Such is the plain, natural, and praetical meaning of the statute itself. Such was the plain purpose of using the word "affidavits" as well as "oaths required by law to be administered."

[4] The statute being intended to declare the powers of a notary generally, there is no warrant either in law or logic for construing them more narrowly merely because they become important in a criminal prosecution. Respondent, relying upon our decision in State v. Dallagiovanna, 69 Wash. 84, 124 Рас. 209, 40 L. R. A. (N. S.) 249, urges that the question is no longer an open one in this state, and that we there decided in so many words that "a notary public cannot administer any oath with any binding force in law, except such oath is 'required by law." In that case, however, we were speaking of an oral oath, not of an affidavit, and the statute is clear that it is only in connection with such oaths that the authority of the notary is limited to oaths required by law to be administered. The language there used must be confined to oaths of the character there involved. Respondent's argument ignores the fact that the statute uses the word "affidavits" in defining the notary's authority in the premises.

As pointed out in State v. Wilson, supra, the crime of perjury in the second degree is closely analogous to the statutory crime of false swearing in some of the other states. Under the Penal Code of Texas false swearing is defined as follows:

"If any person shall deliberately and willfully, under oath or affirmation legally administered, make a false statement by a voluntary declaration or affidavit, which is not required by law or made in the course of a judicial proceeding, he is guilty of false swearing. **" Article 209, White's Penal Code (Texas).

*

The only difference between that statute and our statute defining perjury in the second degree is that, in addition to voluntary oaths or affidavits not required by law there

An affidavit is not only a written oath, but a statement of the things sworn to. It is matter of common knowledge that from time almost immemorial affidavits have been used in business, though not required by law, whenever a solemn, formal asseveration upon which others might rely was intended. denounced, our statute includes any volunFamiliar examples are affidavits touching ti-tary oath or affidavit and any oath or affitles to property, affidavits of financial condi- davit made or taken in a proceeding or intion for the purpose of obtaining credit, af- vestigation authorized by law. Under the

State, 22 Tex. App. 372, 3 S. W. 662, that a county clerk who was authorized by statute "to administer all oaths and affirmations, and to take affidavits and depositions, to be used as provided by law in any of the courts," and who was also generally empowered to take affidavits, could take a voluntary affidavit not required by law, and that the maker of such an affidavit before the clerk, which affidavit was false in fact, was liable to prosecution, not for perjury, but for false swearing. The court said:

"The distinction between perjury and false swearing is this, viz.: If the false statement be made in an oath or affidavit 'required by law, or made in 'the course of a judicial proceeding,' the offense is perjury; if the false voluntary oath or affidavit is 'not required by law or made in the course of a judicial proceeding,' then it is false swearing."

Since, as we have seen, our statute defining perjury in the second degree includes voluntary false swearing "concerning any matter whatsoever," the Davidson Case furnishes direct authority for the holding, not only that a notary under a statute such as ours is authorized to take affidavits not required by law, but that the voluntary maker of a false affidavit before a notary is in this state subject to prosecution for perjury in the second degree. See, also, O'Bryan v. State, 27 Tex. App. 339, 11 S. W. 443; Urben v. State (Tex. Cr. R.) 178 S. W. 514.

A review of the many authorities cited by respondent in support of the general rule that a charge of perjury cannot be based upon an oath not required by law would be a bootless task, since the various statutes involved were evidently not like ours.

[5] It is true, as urged by respondent, that if there is a reasonable doubt as to the law the courts will resolve that doubt in favor of the innocence of the party charged, but our statute punishing voluntary false swearing "concerning any matter whatsoever" is too clear in its intent to admit of construction.

proached the crossing where the accident occurred held for the jury.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 1161; Dec. Dig. 350(7).]

3. RAILROADS

350(17)-INJURIES AT CROSS

ING-CONTRIBUTORY NEGLIGENCE-QUESTION
FOR JURY.

In an action against a railroad for a death caused by collision of its train with an automobile, whether deceased was negligent in failing to discover the approach of the train until his car passed up an incline from behind a building to within 18 to 20 feet of the track at a crossing held for the jury.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 1170; Dec. Dig. 350(17).] 4. RAILROADS 328(1)-INJURIES AT CROSSING-EXISTENCE OF OBSTRUCTION.

In an action against a railroad for a death caused by collision of its train with an automobile, the existence of a frame house near the track at the crossing where the accident occurred, obstructing the view, was an element to be taken into consideration in determining the degree of care to be exercised by decedent, imposing a like degree of care on defendant.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1057, 1060, 1069; Dec. Dig. 328(1).]

5. RAILROADS

327(1)-INJURIES AT CROSS

ING-DUTY TO LOOK FOR TRAIN.

One about to cross a railroad track is under positive duty to look for a train as soon as he becomes aware that he is about to cross the track.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1043, 1045; Dec. Dig. 327(1).] 6. RAILROADS 333(2) - INJURIES AT CROSSING-CONTRIBUTORY NEGLIGENCE.

The driver of an automobile who drove up a 12 per cent. incline to a railway crossing on intermediate gear at a speed of 10 to 15 miles an hour, under which circumstances the car could have been stopped in from 3 to 5 feet, but failed to stop, though there was an approaching train in view not more than 300 feet away, was negligent as matter of law in attempting to cross in front of the train.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1081; Dec. Dig. 333(2).] 7. RAILROADS 350(1) - INJURIES AT CROSSING-QUESTION FOR JURY.

The question whether the automobile in fact stood on the track for any appreciable jury.

The judgment is reversed, and the cause is length of time before being struck was for the remanded for further proceedings.

MORRIS, C. J., and FULLERTON, CHADWICK, and MOUNT, JJ., concur.

(91 Wash. 387)

McKINNEY et al. v. PORT TOWNSEND &

P. S. RY. CO. et al. (No. 12940.)

(Supreme Court of Washington. June 6, 1916.)
1. NEGLIGENCE6
FAILURE TO OBSERVE
STATUTORY DUTY.

Failure to observe a positive statutory duty is negligence per se.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 8; Dec. Dig. 6.]

2. RAILROADS 350(7)-INJURIES AT CROSSING-FAILURE TO SIGNAL - QUESTION FOR

JURY.

In an action against a railroad for a death caused by a collision, whether the engine bell was rung and whistle blown as the train ap

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 1152; Dec. Dig. 350(1).]

8. RAILROADS 351(22)-INJURIES AT CROSSING-INSTRUCTION-LAST CLEAR CHANCE.

In an action against a railroad for a death caused by a collision of its train with an automobile, the instruction on last clear chance

that, if the jury found deceased was guilty of

negligence in driving his automobile onto the railroad crossing, and that the car in some way became stalled, "so that deceased was unable to go across the track, and that, while in such dangerous position, and unable to extricate himself therefrom," the engineer and fireman on defendant's train saw the automobile stopped on the crossing in time to have stopped the train, etc., was proper as telling the jury that before the doctrine applied the jury must find that deceased's negligence had culminated in a situation of peril from which the exercise of ordinary care on his own part would not extricate him.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1214; Dec. Dig. 351(22).]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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