Bauknight v. State , 68 Ga. App. 813 ( 1943 )

1. Oaths to affidavits ordinarily are not required to be administered with any particular ceremony. It is not necessary that the oath administered should be formal. What the law requires is that there must be something done in the presence of the officer, some corporal act performed before the officer, whereby the person to be bound consciously takes upon himself the obligation of an oath. Both the officer and the affiance must understand that an oath is being administered and taken.

2. Applying the rule of law stated in the preceding headnote to the facts in the instant case, the evidence authorized the verdict.

DECIDED FEBRUARY 9, 1943. Myrtle Bauknight was convicted of false swearing. Her motion for new trial was overruled, and she excepted. Mrs. McClesky's testimony was to the effect that a boy, James Lawton Peacock, and a girl, Lois Nelson, went to the ordinary's office in Marietta, Cobb County, Georgia, to apply for a marriage license. They were accompanied by a woman who said her name was Mrs. J. C. Nelson, who later turned out to be Myrtle Bauknight. The clerk of the court of the ordinary, Mrs. Ruby McClesky, who was also a notary public of Cobb County, testified: "I inquired of Myrtle Bauknight as to who Peacock was and who Lois Nelson was, and she said she was the mother of the young lady. I asked her then where she lived, and she said down close to Jonesville, just below Wommack's service-station, in Cobb County. I then asked her to get some local person to identify her, and that she was a Cobb County lady, and that it was mother and daughter. She then got some one to identify her, and that was Dr. Brantley who said he knew her. I did not know at the time that Dr. Brantley was mistaken as to who she was. Then, before I issued the marriage license, in addition to that information, I required her to take an oath, which I have here in my hand. That oath is on the bottom of this paper which I have here. This is signed by Mrs. J. C. Nelson. The lady that represented herself as being Mrs. J. C. Nelson is Mrs. Bauknight over there, as I understand it now. That is her sitting over there at that table. As a notary public I administered an oath to Mrs. Myrtle Bauknight. That oath was not administered to her on the Bible. I wouldn't know exactly the words I used in administering that oath to her, but the oath stated that she was the mother of the girl and that she was consenting to the issuance of the marriage license. I don't remember whether I read her exactly what is or here or not; I wouldn't say about that. I did swear her. I swore her to those facts there. It was in this county, down here in the ordinary's office, that oath was administered to her. I think that was in the morning just before lunch time. After I administered the oath to her she signed her name to it there, and as a notary public I witnessed the oath as indicated, then and there. I witnessed that in her presence. Then, acting upon the identification that I had, and acting upon that oath that I administered there and which she signed in my presence and which I signed there in her presence, I then issued a marriage license to James Lawton Peacock and Lois Nelson. They were then married here in Marietta by Reverend H. M. Strozier. This is the license, and this is the certificate to the marriage here at the bottom."

On cross-examination Mrs. McClesky testified: "As to whether or not I definitely recall anything at all that was said to her, independent of any record and from my recollection — well, not the exact words that I said to her. But I do remember that I did not have her to put her hand on the Bible. I do remember distinctly giving her the oath, and she said `Yes,' but I do not remember just the words that I said to her. This license here is the one that I issued to Mr. Peacock and Miss Nelson. This license has been properly returned and is of record in our office. This indicates that they were married with this license that was issued there."

Mrs. W. L. Godwin, sworn for the State, testified: "I am a sister to Lois Nelson. On June 19th, 1941, my sister Lois Nelson was fourteen years old. I know James Lawton Peacock. He is the man that married my sister. He told me how old he was at that time. My sister is living in Atlanta at the present time. The defendant on trial here and sitting there at that table, Myrtle Bauknight, is not Mrs. J. C. Nelson, my mother, or the mother of Lois Nelson. On June 19th, 1941, my mother was at the Steiner Hospital in Atlanta, recovering from a serious operation. My mother is named Mrs. James O. Nelson."

On cross-examination she testified: "I live at East Point, Georgia. I am the sister of Lois Nelson, now Lois Peacock. She lives in Atlanta, and is still living with Mr. Peacock. I was present at the time my sister was born. I have her birth certificate at home. Independent of the birth certificate I don't know the year she was born without counting it back. I was not present at the time Mr. Peacock was born, and all I know about his age is what he told me. I was not here at the time the marriage license was procured. My mother was Mrs. James O. Nelson, not Mrs. James C. Nelson. My mother is not here."

The defendant, in her statement to the jury, said in part: "Gentlemen of the jury, I don't know anything about signing an affidavit. I had no intention of swearing. When I came with them for that license they had been asking me for two days, and I told them go and get your mother to sign them, so that the trouble would be over when she got home. Well, I told them that first day that I couldn't go. I was then working. So then they came back the next morning and kept persuading me, and said she had to go. On the afternoon before her brother had jumped on her and beat her all over the place, and they called the police, but that there wasn't anything done. She went to the hospital that night to see her mother. She said mother said go with me and get me out of this before she came home, that she couldn't stand any more trouble. Well, I came with them; I got with them that morning and came up with them. When we got in the ordinary's office there was a young girl waited on us. She filled out the application and I was nowhere around. They didn't tell me anything except to sign Mrs. J. C. Nelson before I got away. They signed the girl's mother's name. They didn't tell me that I was posing as this girl's mother. And their marriage provided me nothing. I was to gain nothing by it. I have a home. And it wasn't doing me any good if they married or didn't marry. But she said she should marry, and I took her at her word."

The defendant further stated that some one called her up on the telephone and wanted her, the defendant, to pay them $300 to stop the prosecution. As we interpret the record the person the defendant was referring to was Mrs. Godwin, the sister of Lois Nelson, referred to in the marriage license. The defendant denied emphatically that she was guilty of false swearing.

The State introduced the marriage license, the application for it, and the following affidavit which was attached to and a part of the application:

"State of Georgia, County of Cobb: Personally before the undersigned authority now come Mrs. J. C. Nelson and C. E. Peacock, citizens of the United States, who upon oath say that they know James Lawton Peacock and Lois Nelson, and know that said parties are twenty-one and nineteen (21 and 19) years of age or over, and gives consent to this marriage. Mrs. J. C. Nelson.

"Sworn to and subscribed before me this 19th day of June, 1941. Mrs. Ruby McClesky, N. P. Mrs. Nelson identified by Lewis Brantley." 1. The Code, § 26-4003, declares: "False swearing shall consist in wilfully, knowingly, absolutely, and falsely swearing, either with or without laying the hand on the Holy Evangelist of Almighty God, or affirming in any matter or thing, other than a judicial proceeding, by a person to whom a lawful oath or affirmation has been administered." Code § 53-207 declares: "The ordinary shall inquire as to the ages of all persons for whom marriage license are asked; and if there shall be any grounds of suspicion that the female is under the age of 18 years, the ordinary shall refuse to grant the license until the written consent of the parents or guardian, if any, controlling such minor, shall be produced and filed in his office."

The defendant contends that there was no sufficient evidence to show that Lois Nelson on June 19, 1941, at the time the alleged oath was taken and the marriage license applied for and issued, was not nineteen years of age as stated in the affidavit or that she was under eighteen so as to bring her under the prohibition contained in the Code, § 53-207. Lois's sister testified on direct examination that Lois was fourteen years of age on the date in question. On cross-examination she testified. "I was present at the time my sister was born. I have her certificate at home. Independent of the birth certificate, I do not know the year she was born without counting it back." The witness's testimony on cross-examination did not disprove her testimony on direct examination that Lois was fourteen years of age, and even if it can be said that the testimony was vague, indefinite, and uncertain, it was for the jury to determine whether it was so vague, indefinite, and uncertain, as to be worthless. The jury by their verdict resolved this issue in favor of the State. We think they were authorized to do so. O'Brien v. Ellarbee, 14 Ga. App. 333 (5) (80 S.E. 864).

2. The defendant contends that the evidence does not show that any legal oath was administered to the defendant. The notary public testified positively on direct examination that she administered the oath and while she did not know the exact words she used in administering it yet she did remember that defendant swore that she was the mother of the girl and was consenting to the issuance of the marriage license, and that the girl was over nineteen years of age. On cross-examination she testified: "I do remember distinctly giving her [defendant] the oath and she said `Yes,' but I do not remember just the words that I said to her."

It is not necessary that the oath administered should be formal. What the law requires is that there must be, in the presence of the officer, something done, some corporal act performed before the officer, whereby the person to be bound consciously takes upon himself the obligation of an oath. Both the officer and the affiance must understand that an oath is being administered and taken. Brooks v. State, 63 Ga. App. 575 (11 S.E.2d 688). We think in this case the acts of the officer and of the defendant were concurrent, and conclusively indicated that it was the purpose of the one to administer and the purpose of the other to take the oath. The record disclosed evidence from which the jury might conclude that both the notary public and the defendant understood that an oath was being administered and taken. The evidence authorized a finding that a legal oath had been administered and authorized the verdict.

Judgment affirmed. Broyles, C. J., and Gardner, J.,concur.