Davidson v. State

• Decision Date: 20 November 1886
• Citation: 3 S.W. 662
• Court: Texas Court of Appeals
• Parties: DAVIDSON <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>

3 S.W. 662

DAVIDSON

v. STATE.¹

Court of Appeals of Texas.

November 20, 1886.

Appeal from district court, Williamson county.

This conviction was for perjury, and the penalty assessed was a term of seven years in the penitentiary. The opinion discloses the case.

Sheeks & Sheeks and Fisher & Townes, for appellant. Asst. Atty. Gen. Burts, for the State.

WHITE, P. J.

In order to obtain a marriage license, one Thomas Bratton made an affidavit, which was required of him by the county clerk, that his fiancee was 18 years of age, and that her parents had given their consent to the marriage. It turned out that neither of these sworn statements was true, and that the maiden was in fact only 17 years of age. A prosecution was instituted in a very short time against Bratton by indictment based upon this affidavit, charging him with "false swearing." Bratton defended, and procured this appellant to appear as a witness in his behalf. Appellant's testimony, in substance, was that Catherine Ross (the female in question) "was a great big girl thirteen years ago; that she had not grown but very little since he became acquainted with her, thirteen years ago; that he picked cotton with Catherine Ross thirteen years ago, and that she was then a good sized girl, — big enough to pick cotton." Notwithstanding this testimony, Bratton was convicted of "false swearing," and his punishment was assessed at two years' confinement in the penitentiary. Appellant was then indicted for "perjury" in testifying as aforesaid on Bratton's trial, and, having been convicted and sentenced to seven years in the penitentiary, he appeals to this court.

It is contended that the county clerk had no authority to take Bratton's affidavit in the premises, and that Bratton committed no offense in making it, and that if no offense was committed by Bratton then appellant's testimony on the trial of Bratton could not support an assignment of perjury. Had Bratton been indicted for perjury, there might have been some plausibility, if not reason, in this position, inasmuch as perjury can only be assigned upon an "oath or affirmation legally administered under circumstances in which an oath or affidavit is required by law, or is necessary for the prosecution or defense of any private right, or for the ends of public justice." Pen. Code, art. 188.

A county clerk is the only officer authorized by law to issue marriage licenses, and the same article which confers that authority upon him also empowers him "to administer all oaths and affirmations, and to take affidavits and depositions, to be used as provided by law in any of the courts." Rev. St. art. 1149. He is also generally empowered to take affidavits. Rev. St. art. 7. He is expressly prohibited from issuing a license to marry without the consent of the parents or guardians of the parties applying, unless the parties so applying shall be, in the case of the male 21 years of age, and in the female 18 years of age. Rev. St. art. 2841. But the law nowhere requires or authorizes the taking of an oath or affidavit of the age of the applicant in cases where the clerk is in doubt upon the subject. His authority to require such oath and affidavit for his own protection is, if at all, derived solely from his general power "to administer all oaths, and take affidavits." Such being the case, it may well be questioned whether, under our law, an affidavit so made would be a legitimate basis for an assignment of perjury. Mr. Desty, in his American Criminal Law, says perjury may be assigned on a false oath taken before a surrogate to obtain a marriage license. Amer. Crim. Law, § 75g. Mr. Bishop, on the other hand, says: "In England a false oath taken before a surrogate to deceive him into granting improperly a marriage certificate, though not perjury, is a criminal misdemeanor." 2 Bish. Crim. Law, (7th Ed.) § 1029. In Ohio perjury can be assigned upon such an oath. Call v. State, 20 Ohio St. 330; Warwick v. State, 25 Ohio St. 21.

Our opinion is that it would not be a legitimate basis for an assignment of perjury under our statute, it being only a voluntary affidavit. Not being for use in any of the courts, such an affidavit would be extrajudicial, and an extrajudicial oath lays no foundation for a prosecution of perjury. U. S. v. Babcock, 4 McLean, 113; 2 Bish. Crim. Law, (7th Ed.) § 1027. And it seems clear that no oath whatsoever, taken before persons acting merely in a private capacity, or before those who take upon them to administer oaths of a public nature without legal authority for their so doing, or before those who are legally authorized to administer some kinds of oaths, but not those which happen to be taken before them, or even before those who take upon them to administer justice by virtue of an authority seemingly colorable, but in truth unwarrantable and merely void, can ever amount to perjury in the eye of the law, because they are of no manner of force, but are altogether idle. 1 Hawk. P. C. c. 69, § 4. In 4 Bl. Comm. 137, it is said: "It is much to be questioned how far any magistrate is justifiable in taking a voluntary affidavit in any extrajudicial matter, as is now too frequent upon every petty occasion, since it is more than possible that by such idle oaths a man may frequently in foro conscientiœ incur the guilt, and at the same time evade the temporal penalties of perjury."

But the indictment against Bratton was not for perjury, but for false swearing, — a distinct specific offense under our Code, which provides that "if any person shall deliberately and willfully, under oath or affirmation legally administered, make a false statement by a voluntary declaration or affidavit which is not required by law, or made in the course of a judicial proceeding, he is guilty of false swearing, and shall be punished by imprisonment in the penitentiary not less than two nor more than five years." Pen. Code, art. 196. The distinction between perjury and false swearing is this, viz.: If the false statement be made in an oath or affidavit "required by law," or made in "the course of a judicial proceeding," the offense is perjury; if the false voluntary oath or affidavit is "not required by law, or made in the course of a...