Opinion
Argued March 5, 1962
Affirmed March 21, 1962
Appeal from Circuit Court, Marion County.
GEORGE R. DUNCAN, Judge.
Lawrence Osterman, Salem, argued the cause and filed a brief for appellant.
Gary D. Gortmaker, Deputy District Attorney, Salem, argued the cause for respondent. With him on the brief was Hattie Bratzel Kremen, District Attorney for Marion County, Salem.
Before McALLISTER, Chief Justice, and WARNER, SLOAN and O'CONNELL, Justices.
AFFIRMED.
Defendant was convicted of perjury. He appeals from the judgment entered on the jury's verdict. There is one assignment of error. It reads:
"The Court erred in failing to direct a verdict of acquittal.
"(1) There is no proof that an oath was administered.
"(2) There is no proof that Dorothy French, the Circuit Court Clerk, had legal authority to administer the oath."
The two alleged failures of proof mentioned in the assignment refer, of course, to the trial of the cause in which it was charged that defendant had been a witness and had given perjured testimony.
The official court reporter who reported the case in which defendant had testified was a witness in the instant case. He testified that he had no independent recollection that defendant had been sworn prior to giving his testimony in the former case. However, his official transcript of the pertinent portions of the record in the prior trial was admitted without objection. This record stated that defendant had been sworn. This was sufficient evidence to require the issue to be submitted to the jury. State v. Mann, 1941, 219 N.C. 212, 13 S.E.2d 247, 132 ALR 1309; Koehler v. State, 1935, 218 Wis. 75, 260 N.W. 421; The People v. Wright, 1926, 324 Ill. 29, 154 N.E. 408, ORS 8.360. There was no denial that this record did not speak the truth.
In respect to the second contention in the assignment ORS 44.320 provides that a clerk of the court may administer an oath. The court took judicial notice of this authority and so instructed the jury.
The assignment of error is without merit and the judgment is affirmed.