The opinion
ROSE, Justice,
dissenting, with whom McCLINTOCK, Justice, joins.
I dissent.
The statute, now § 6-8-102, W.S.1977, under which Mr. Nimmo was charged and found guilty, is, in my judgment, unconstitutionally vague and is, therefore, in violation of Article 1, Section 6, of the Wyoming Constitution.
The question I will address is whether the portion of § 6-8-102, W.S.1977, that provides
“or whoever submits a false claim or voucher under penalty of perjury, shall be guilty of false swearing, . . . ”
is unconstitutionally vague on its face.
The answer to the constitutional issue rests, almost entirely, on whether the statute can be properly construed to include the element of intent. It must be remembered, in this respect, that the court will not judicially incorporate into a statute language that was omitted by the legislature. State v. Stern, Wyo., 526 P.2d 344, 348 (1974). More specifically, this court will not read into criminal statutes the requirement of intent. State v. Stern, supra, at 348, fn. 6 .
If intent is required by the statute, it must arise by virtue of the phrases “false claim” and “under penalty of perjury”— viewed singularly or in combination.
Viewed singularly, there is no doubt in my mind that the element of intent is absent. The plain and ordinary meaning of “false claim” would be a claim that is not true, or one that does not accord with reality. In law, the word “false” usually means designedly untrue, and implies an intention to deceive, but it has been held to mean simply “contrary to fact” or “erroneous” or “incorrect.” See, Black’s Law Dictionary, “False,” at pp. 721-722. It might be said that because “false claim” is found in a penal statute it must mean “intentionally untrue.” But to so conclude would be to read into the statute the element of intent — something this court has said it would not do. The fact is that, standing alone, the phrase “false claim” can be read as proscribing innocent conduct resulting from a mere mistake or error.
Furthermore, the phrase “under penalty of perjury” — when viewed by itself — has no legal significance in the quest to discover the element of intent. I would submit that the phrase, when taken in its plain and ordinary meaning, is merely a reference to the declaration that is to appear on the claim or voucher by virtue of other statutory authority. As noted in Perkins Crim.Law 2d Ed. — UTB 1969, at page 457:
“The most recent substitute for an oath is not ‘administered’ in any strict sense of *396 the term. It is merely a declaration signed ‘under the penalties of perjury.’ Such a declaration, however, has no legal significance unless made under authority of an appropriate statute. If a signer should voluntarily write ‘under the penalties of perjury’ over his signature, this would be just as meaningless as if a seller, just on his own initiative, should raise his right hand and ‘swear’ that he had title to the goods he was purporting to sell. And if this phrase appears in a printed form prepared by some commission, board or officer it is equally without legal effect unless its appearance is under statutory authority.” [Emphasis supplied]
Examples of such “other” statutory authority abound in Wyoming statutes. For examples, see § 18-3-510(a), W.S.1977, requiring an affidavit for a claim against a county; § 27-12-201, W.S.1977, requiring an employer to submit his payroll “certified and affirmed . . . under penalty of perjury”; and § 37-8-410, W.S.1977, requiring motor carriers to certify total ton miles traveled “under penalty of perjury . on forms furnished [by the state tax commission].” The provision perhaps most applicable to the present case is § 9-2-307, W.S.1977, prohibiting the auditors to draw warrants, except on the basis of itemized accounts “certified to under penalty of false oath.” Article 16, Section 7, Wyoming Constitution.
The phrase “under penalty of perjury” seems to have been used to add to the false-swearing statute the requirement that the “false claim” be made under circumstances where the claim must be submitted along with a declaration of veracity. Only this makes sense, since the element of an oath goes to the very foundations of the crime. When we say, however, that the claim must have been made under oath (“under penalty of perjury”), we have said nothing about whether the statute requires proof that one has made a false claim, under oath, with knowledge that the claim was false. This is so because a person can make a false claim or statement, under oath, without knowing that the claim or statement is false. Under these circumstances, the person would not be guilty of false swearing — under the classical definition — because he was not intentionally untrue.
In other words, while the phrase “under penalty of perjury” provides the element of an oath, it does not also provide the element of guilty knowledge. Standing alone, the phrase merely adds an element that does not necessarily include intent.
Can we combine “false claim” and “under penalty of perjury” to supply the element of intent? I say no, for the same reason that the requirement of an oath does not, in itself, supply the element of intent. An oath refers only to a type of statement, i. e., it is a statement claimed to be true. A statement claimed to be true, but which is in fact untrue, does not necessarily constitute false swearing — or the swearing to a statement without the sincere belief in its truthfulness. By simply reading the pertinent portion of § 6-8-102, men of common intelligence would see only the elements of falsity, an oath, and submission of a claim under said oath. He would necessarily have to guess that his submission must also, to be criminal, be with knowledge of the falsity. It is this very possibility that innocent acts may be covered by a penal statute, that led this court to its conclusion in Stern, supra, albeit under a different statutory setting and circumstance.
. I am unable to overcome the fact that, if such had been intended, the legislature could have easily added words like “knowingly” or “wilfully” to the pertinent portion of § 6-8-102. Such words appear in every other perjury-type statute in the Wyoming Statutes. See listing of these provisions prior to § 6-8-101, W.S.1977. We would have to conclude that such words would have been mere surplusage, in order to conclude that the intent element manifested by such language is present in §. 6-8-102. How can we call those words surplusage, when the legislature, in every other statute, has itself deemed it necessary to include them? I, for one, am unable to do so.
*397 Finally, I would note a problem similar to that raised in Stern, supra, to-wit: If we were to construe the statute as requiring intent, what intent should we read into it? Must there be a specific intent to defraud the government? I would note that the federal circuit courts have considered this question, with varying results, under the federal false-claim statute ( 31 U.S.C.S. § 231 ) — where the phrase “knowing such claim to be false” is used. See, Gen., Anno-ta., “False Claims Act — Specific Intent,” 26 A.L.R.Fed. 307 (1976).
I would, therefore, have held the statute under which Mr. Nimmo was charged and convicted, to be unconstitutional on its face and would have remanded with orders to dismiss the charges.