#### State v. Whisenhurst.

From Lincoln.

When a witness comes before a tribunal to be sworn, it is to be, pre- ' siimed that he has settled the point with himself in what manner he will be sworn, and he should make it known to the officer of the. Court; and should he be sworn with uplifted hand, •-lough not con» scientiously scrupulous of swearing- on the Gospels, and depose falsely, he subjects himself to the pains and penalties of peijury.

Indictment for Perjunj, which charged that the "Defendant “ was sworn in due form of law.” The Jury found that the magistrate before whom the oath was taken, swore the Defendant with an uplifted hand* agreeably to the directions of the act of Assembly, but the magistrate, did not tender the Gospels to the Defendant before he was sworn, nor did the Defendant request to be sworn in any other manner than as he was sworn 5 and further, they found that the Defendant was not conscientiously scrupulous of swearing on the Gospels : and on these facts the Jury prayed the advice of the Court. .

Daniel, Judge, who presided, was of opinion iliat the Defendant was not guilty of perjury, and rendered judgment accordingly, from which Mr. Solicitor Wilson, for the State, appealed.

Seawell, for the Defendant,

contended that as the magistrate had, by law, no authority to swear the Defendant, except on the Gospels, that the consent of the Defendant could not authorise it. He swore here, as it appeared, that his account was just and true, but this was not a case which permitted an oath, under what is termed the book debt law — therefore, though Defendant may have sworn falsely, no indictment for perjury can he sustained. A party swearing falsely to an immaterial point, does not commit peijury, because the law does not *459in fit at case impale moral depravity or terpHnde of heart. Ti o more will it. imputo it in cases whore the ' law isas said be shaii not be sworn. .

,':i(')rney-Gr,i"yj.l answered, that tito magistrate Hiiglst, be law, nave si worn ¿be i) ten-tetete lúa account ; ‘.veil H Ai this was not an tein/j;*,tersa! ÍVts knt if to for-lite a nuitíM-ieí fací, a ulíuess shears falsely lo an ira-material fact, it is perj ay»

Hall, Judge.

The act vi í'i77y ch. 10b, aec. 2, ;jeús lorió fije ksíi;í! mode su which of.tbs ara eaiiEiotey asl-inimsiemf; neccording to which, the hand o? the per* koíí sworn ir. laM apon íde TIoIy ii «y ¡relíe te, and iba <>a1Í2 ir» concluded by kissing the bool: which contains tuem. By sec. C, it io declared, tiial whore, any person is conscientiously scrupulous of taking a book oath its the manner as before pointed out, ho may be sworn with nu spirited hand, the ruünsee end form of which is also pointed out. When a witness coinés before any tribunal, li Is io be presumed that he Hs settled the point with himself in what manner ho will bo qoaltiieti and sworn to give evidence. It cannot he eicpected. that the Court or Clerk can be the keeper of his cour,elenco. It was for the Defendant, Whtsenhurst, to make known to the jus* lice whether he objected to, or preferred being sworn with an uplifted hand, if he did not object, it ¡mint be taken that he, not only acquiesced, hut preferred that mode of being sworn. If a diíihront rule is laid down, the consequence will he, that every person who shall hs guilty of perjury, will ward off flic punishment due to it, who can find a Jury that will say he is conscientiously ¡scrupulous or not, as bis case may require. A person may as well say, after being sworn in the common way, that he was conscientiously scrupulous, as to say that he was not conscientiously scrupulous after having been sworn with an uplifted hand. ELe had a choice, given *460by the law* before he was sworn ; when sworn lie has made his election. Afterwards it is too late to retract.

I think judgment should he rendered for the State against the Defendant, upon the speciarverdict.

And of this opinion was the rest of the Court.