Goodman v. State

• Decision Date: 14 May 1919
• Docket Number: (No. 4762.)
• Parties: GOODMAN v. STATE.
• Court: Texas Court of Criminal Appeals

212 S.W. 171

GOODMAN v. STATE.

(No. 4762.)

Court of Criminal Appeals of Texas.

May 14, 1919.

Appeal from Smith County Court; W. R. Castle, Judge.

Charles Goodman was prosecuted for an offense, and appeals from the judgment. Reversed, and prosecution ordered dismissed.

Hanson & Butler and T. N. Jones, all of Tyler, and Lightfoot, Brady & Robertson, of Austin, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

It is unnecessary to notice but one question presented. The complaint recites:

"Sworn to and subscribed before me on this 2d day of April, A. D. 1917. H. V. Davis, County Attorney of Smith County, Texas, by Clifford C. Hall, Assistant County Attorney, Smith County, Texas."

It is contended that this complaint is invalid; that it could not be sworn to before the county attorney by his deputy. The case of Arbetter v. State, 79 Tex. Cr. R. 487, 186 S. W. 769, is directly in point, and, if correct, this judgment should be reversed, and the prosecution ordered dismissed. Authorities are relied upon by the state.

The deputy may do, under the law, what his principal may do in line of duty devolving upon the principal. This is the general rule, and unless there are stated exceptions the general rule applies, but where the act cannot be so performed, and the deputy is required to do the act himself, this rule does not apply. If it pertains to him individually, such as taking oaths, he cannot verify in the name of the principal. This seems to be fully recognized by the authorities. This matter underwent investigation in Palmer v. McCarthy, 2 Colo. App. 422, 31 Pac. 241; also in Robinson v. Gregg (C. C.) 57 Fed. 186. Where the administering of an oath is required, he cannot administer it in the name of the principal. While he derives his authority from the principal in a certain sense, he being a deputy and qualified under the law as such deputy, the oath administered must be by him. He cannot administer it in the name of the principal, nor can he certify that the principal administered the oath through or by him as deputy. Where an oath or affirmation is required, it must be administered by the officer taking it. He cannot administer it through another. The jurat must show the oath taken was by the officer administering it. If the principal administers the oath, it must so recite. If the deputy does it, it must recite it was done by the deputy, not that it was done by the principal through the deputy. The authorities seem to be clear upon the proposition, and draw the distinction. See note in 2...