No. 28

#### John C. Ashburn, plaintiff in error, *vs.*The State of Georgia.

£1.] In all cases of presentment or of indictment, the only lawful oath which, can be administered to witnesses, to be sent before the Grand Jury, is the following: *“*The evidence which you shall give to the Grand Jury, on this bill of indictment, (or presentment) as the case may be, (here state the case,) shall be the truth, the whole truth, and nothing but the truth, so help you God”.

■[2.] If the oath of the witnesses be materially different from this, the indictment ought to be quashed or dismissed.

Indictment for misdemeanor, in Bibb Superior Court. Tried before Judge Powers, September Term, 1853.

The defendant, John C. Ashburn, was indicted for presiding and dealing at a faro-table. To the indictment, the defendant pleaded, that the witnesses upon whose evidence the indictment was found, had not been legally sworn—“ they having taken, in open Court, an oath to testify concerning such matters as should be inquired of them, by the Grand Jury”; and not having been sworn, “ that the evidence they should give the Grand Jury, upon said special presentment, between the State of Georgia and the defendant, who is charged with the offence of a misdemeanor, should be the truth, the whole truth, and nothing *247but the truth”. On the trial, the Solicitor General admitted the facts stated in the plea to be true. Counsel for the defendant moved the Court to quash the indictment, which motion-was over-ruled; and counsel for defendant excepted.

S. & R. P. Hall, for plaintiff in error.

Sol. Gen. DeGraffeneeid, for the State.

*By the Court.*

Penning, J.

delivering the opinion.

The special plea having been admitted to be true, the question ^hrst for consideration is, was the oath, administered to the witnesses on whose statements the indictment or presentment was found, a lawful one ?

That was an oath “to testify concerning such matters as should be inquired of them by the Grand Jury”.

The suit of the State, in this case, was a proceeding under the Penal Code. It was one, therefore, to be governed by that Code. What, then, says the Code ?

Section XXII of the fourteenth division, has the following language: “ And the following oath shall be administered to witnesses intended to be sent before the Grand Jury: the evidence you shall give the Grand Jury on this bill of indictment (or presentment) as the case may be, (here state the case,) shall be the truth, the whole truth, and nothing but the truth—so help yóu God”.'

The meaning of this, plainly is, that this oath is to be administered to *all*“ witnesses intended to be sent before the Grand Jury”. Certainly, to all intended to be sworn in cases of *presentment*or of *indictment.*And are there cases of any other sort ? .

And this was a case of indictment, founded on the presentment of a Grand Jury.

It follows, therefore, that this was the oath which the Code required to be administered in this case.

This oath was not administered, but another was, viz: an oath to testify concerning such matters as should be inquired of by the Grand Jury.

*248Now this oath differs from the one prescribed, both in form and in substance. It does not require the witness to speak “ the truth, the whole truth, and nothing but the truth”. If it requires him to speak the truth at all, it is as much as it does. It omits to state the proceeding, the presentment or the indictment, in which the testimony is to be given—it omits the name of the case in which that testimony is to be given. With such differences, it is not, in form, or in substance, the same oath as the one which the Code prescribes; and so is not the oath which the Code requires to bo administered; and, therefore, is not a lawful oath.

[1.] The oath should have followed the Code.

[2.] The oath being unlawful, the statements of the persons examined under it, could not amount to evidence. But the presentment and indictment were founded on those statements. They were, therefore, founded on what was not evidence—in other words, were without foundation. They were, therefore, void.

Neither perjury nor false swearing can be assigned, unless the oath be a *lawful*one. (Code, *Eighth Div.*§ § *I. III.)*

The Court below ought to have quashed the indictment.