The Redwood gazette. [volume] (Redwood Falls, Minn.) 1873-1940, 1894-06-21

the matter assigned as perjury was material
a writ of attachment wOnld not issue until
the things stated in this matter were made
to appear.
4. It is contended that it does not suf-
fciently appear by the evidence that defend
ant was actually sworn to the affidavit. The
notary public before whom the afidavit pur-
ports to have been made and sworn to, tes-
titled that defendant signed the affidavit and
he signed it and affixed his seal to it as notary
and identified the signatures and seal. The
afidavit was then received in evidence. This
was sufficient authorization. Besides the
notary was also the court commissioner and
defendant on his own behalf testified that he
was retained by the plaintiff in that case
and had authority to make the afhdavit He
testified: II went down to the court COM
missioners and presented it there and had
him make his order for attachment as is
shown by the files in this case
Il had the affidavit all written out and
signed and everything and I handed it
to him and I don't remember just exactly
what remark made or he made but he. says
That your signature:' and said Yes and
he took the affidavit.'' He further testified
that he paid the commissioner his fee who as
notary signed the afidavit for attachment
and as commissioner signed the. order for
attachment Il had the attachment pro-
ceedings made out and I went up to the
clerk of court and filed them there and had
the writ of attachment issued" 20. Now
Mr.. Madigan at the time you made this affi-
davit state whether or not you made.i in
good faith believing it to be true when you
wrote it, "A. certainly did, if ever did
anything in good faith it was that. would
mt be foolish enough to go and commit per-
Jury for nothing at ALL nor for any sum of
money. wouldn't do it,
1t seems to us that this testimony both
expressly and by every implication admits
that this afidavit was actually sworn to-
Neither do we wish to be understood as
holding that it was necessary to prove by
oral evidence that the affidavit had been
sworn to. In King VS. Morris. Leach's c. c..
SO reported also Burr, 1889, the defendant
was convicted before Lord Mansfield on the
mere proof that the signature subscribed to
the affidavit was in his handwriting and that
the jurat was SUBSIDIZED by the officer before
whom the affdavit purported to be sworn to,
but no further proof was given to identify
the defendant as the person sworn or that
any person was so sworn. It was held by the
court that the evidence was sufficient. See
also Regina VS. Turner, c. K, 1872. 1t is
true that such presumption may be rebutted
by Affirmative evidence showing that in fact
the affidavit was not sworn to. Case VS. Peo-
pie, 76 N, Y, 242. Merely subscribing to the
af1davit is not being sworn to it. ORelley
VS. People, sc N. Y.,154. But it is well settled
that when the signatures are proved as
above stated, it is presumed that it was act
ually sworn to by the person whose signature
is subscribed as af1ant.
s. Romnes, the plaintiff in that action, tes-
titled on behalf of the state that he never
retained defendant to commence that ac-
ton, never authorized it to be commenced
never was in defendants law Office and never
had any business with him until long after
the time that action was commenced. De-
fendant on his own behalf and some of his
witnesses testified that Romnes was in his
office at that time and also gave evidence
tending to prove that Romnes then and
there signed the bond for attachment in that
action. Defendant testified that he signed
the bond as witness and took the acknowl-
edgement of Romnes to it all of which ap-
pears by the bond that he procured the ap-
proval of the court commissioner of the bond
and filed it with the clerk of the court as a
part of the attachment proceedings
On rebuttal Romnes testified that he did
not sign the bond and Helgeson one of the
defendants in that action testified that he
signed the name of Romnes to the bond in
defendants office and that Romnes was not
there. Other evidence was offered that the
bond was forgery and thereupon it was re-
ceived in evidence. All of this evidence was
received against defendants objection and
exception and is now assigned as error.
We are of the opinion that this evidence
was competent. It certainly was material
on the question of whether or not defendant
was the attorney of Romnes If Romnes had
signed this bond if was strong circumstance
to prove that defendant was his attorney if
he had not signed it, but the bond was for
geTy it was a strong circumstance to prove
that defendant was not his attorney IF the
evidence tends to prove the commission of
the crime charged, it is not incompetent
because it also tends to prove the commission
of another crime.