This cause was heretofore presented to the Court and upon consideration thereof the judgment was affirmed. In the original opinion the Court says: "Where a defendant is charged with the crime of perjury the jury is not authorized, upon receiving testimony that the oath charged to have been violated was administered by a certain individual, to assume, in the absence of affirmative judicial knowledge, that that individual was lawfully authorized to administer such oath until evidence shall have been submitted showing that such person was then and there authorized to administer the oath would constitute reversible error, but when the evidence shows that such oath was administered by a person and it appears that such person was one whose official position, powers, duties, and authority to administer the oaths must certainly have been well known to both Court and jury, such as the County Solicitor of the County where the case is being tried, proof of the official status of such person will not be rendered, as such judicial knowledge takes the place of proof."
Petition for rehearing was filed in which it was brought to the attention of the Court that the Court had not fully considered the terms of the statute authorizing County Solicitors to administer oaths.
Petition for rehearing was granted.
The authority of the County Solicitor to administer *Page 780 oaths to witnesses is contained in Sec. 5980, Revised General Statutes of Florida, 1920, and is as follows: "He is empowered to administer oaths to all witnesses summoned to testify by the process of his court." Secs. 5978 and 5979, Revised General Statutes, authorize a County Solicitor to procure process for witnesses.
In 2, Hawkins Pleas to the Crown (7 London Edition, 86) the law applicable here is stated as follows:
"It seemeth clear that no oath whatsoever, taken before a person acting merely in a private capacity or before those whotake upon them to administer oaths of a public nature withoutlegal authority for their so doing or before those who arelegally authorized to administer some kind of oaths, but notthose which happen to be before them or even before those who take upon them to administer justice by virtue of an authority seemingly colorable, but in truth unwarranted and merely void, can ever amount to perjuries in the eye of the law, because they are of no manner of force, but are altogether idle."
The Supreme Court of the United States in the case of the United States v. Curtis,
"It is fundamental in the law of criminal procedure that an oath before one who has no legal authority to administer oaths of a public nature or before one who, although authorized to administer some kind of oaths, but not the one which is brought in question, can not amount to perjury at common law, or subject the party taking it to prosecution for the statutory offense of willfully false swearing. Citing cases. 1 Hawk P. C., b. 1, ch. 27 Sec. 4, p. 430, 8th ed. by Curwood; Roscoe, Cr. Ev. 7th Am. ed. p. 817; 2 Whart Crim. Law, Sec. 2211; 2 Arch. Crim. Pr. Pl. 8th ed. p. 1722."
The law as enunciated in these cases appears to be well settled. It is therefore apparent that the County Solicitor has no authority to administer an oath to any person *Page 781 brought before him as a witness concerning any matter which he may be investigating, unless such witness has been brought before him by the process of his court. In this case the evidence shows that the accused was not a person brought before the County Solicitor as a witness by the process of his court. For that reason the County Solicitor was without authority to administer the oath which was administered to the witness and the violation of which was charged as perjury. The County Solicitor being without authority to administer the oath, the false statements made by the accused under the oath administered under such conditions could not constitute perjury and therefore the judgment should be and the same is now reversed.
Reversed.
WHITFIELD, P. J., AND TERRELL, J., concur.
BROWN, C. J., AND ELLIS AND STRUM, J. J., concur in the opinion.
