State v. Powell

• Decision Date: 31 October 1866
• Citation: 28 Tex. 627
• Parties: THE STATE v. W. L. POWELL.
• Court: Texas Supreme Court

28 Tex. 627

THE STATE

v.W. L. POWELL.

Supreme Court of Texas.

October, 1866.

The 287th article of the penal code defines perjury as follows: “Perjury is a false statement, either written or verbal, deliberately and willfully made, relating to something past or present, under the sanction of an oath, or such affirmation as is by law equivalent to an oath, where such oath or affirmation is legally administered, under circumstances in which an oath or affirmation is required by law, or is necessary for the prosecution or defense of any private right, or for the ends of public justice.” Pas. Dig. art. 1909, note 629. It is never safe to depart from the words of the statute. 13 Tex. 27.

An indictment for perjury must aver positively that the accused had knowledge of the falsity of the statement on which the perjury is assigned, and that he willfully and deliberately made such statement. The facts constituting the offense must be averred directly, positively, and with certainty, and not by way of inference or argument.

The indictment against the appellee charged as set forth in the statement of the case: Held, that the falsity of the statement as to the value of the property, and that the statement was made willfully and deliberately, are only inferentially and not directly averred, and consequently that the indictment is insufficient, and was correctly quashed on motion. 1 Tex. 455.

The indictment ought to aver that the defendant knew he had undervalued the property, and had willfully and deliberately made the false statement in reference to the value of the property rendered for taxation.

In order to constitute perjury, the oath must have been administered by some person duly authorized to administer it in the matter in which it was taken, and in the manner required by law. Penal Code, art. 289; Pas. Dig. art. 1911.

An assessor and collector of taxes has no general authority to administer oaths; but the 2d section of the act of February 11, 1860 (Acts 8th Leg. p. 87; Pas. Dig. art. 5176), conferred on such functionaries a special and limited authority to administer the oath therein prescribed, by which the affiant was to be sworn to the value of his taxable property on the 1st day of January of the current year: Held, that the act did not authorize the assessor and collector to administer to a tax-payer an oath as to the value of his taxable property on the 23d of May, when rendered for assessment, and therefore the indictment, being based on an oath administered without authority of law, was correctly quashed.

APPEAL from Johnson. The case was tried before Hon. R. W. SCOTT, one of the district judges.

The indictment reads as follows: “That W. L. Powell, agent for Ann Powell, late of the county and state aforesaid, on the 23d day of May, 1863, with force and arms, in the county and state aforesaid, did then and there, willfully, deliberately, and wickedly contriving to cheat and defraud the state of Texas out of a portion of her revenue, and to avoid paying his just proportion of taxes levied upon personal property and real estate in said county and state, before one J. R. McKinsey, an assessor and collector for the county of Johnson, in said state of Texas, who was duly commissioned and sworn as such, and who was duly authorized to administer oaths to the taxable inhabitants of said county and state, in relation to their taxable property, made and subscribed on oath and affidavit in writing, wherein he, said W. L. Powell, agent as aforesaid, then and there swore, that the list rendered by him to the said assessor and collector was a true and correct list, and a fair and full valuation of all the taxable property of him the said W. L. Powell, agent as aforesaid, he then and there being a taxable inhabitant of the said county and state, the said affidavit to be the truth, said list being required by law of all such taxable inhabitants, and which said oath was then and there duly and legally administered by said J. R. McKinsey, assessor and collector as aforesaid, and when in truth and in fact the said list did not contain a fair and just valuation of all of said taxable property, it being worth a large amount more than it was rendered and valued at, by means of which said statement in writing as aforesaid, deliberately and willfully made by the said W. L. Powell, agent as aforesaid, was then and there guilty of willful and corrupt perjury, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”

On motion of the defendant, the indictment was quashed, and the state appealed, under the 718th article of the code. Pas. Dig. art. 3182, note 767.

William M. Walton, Attorney General, for the state. The indictment does not charge, in specific words, the allegation that the false oath was taken in a matter “material to the issue.” It is not necessary that such materiality should be expressly averred when it evidently appears on record. Whart. Am. Cr. Law, 662, and note k, and authorities there cited.

W. H. D. Carrington, for appellee. I. No defendant can be called upon to answer to so vague an indictment. It should either have set forth the whole matter in intelligible language, or, by positive averment, the specific falsehood complained of. It is therefore bad. State v. Bishop, 1 Chip. 120; Commonwealth v. Cook, 1 Rob. 729; Commonwealth v. Lodge, 2 Gratt. 579.

II. The indictment does not negative the oath of the defendant, nor does it aver that he knew the falsity of the facts testified. Conner v. Commonwealth, 2 Va. Cas. 30;State v. Morse, 1 Greene, 503; Gatewood v. State, 4 Ham. 386.

III. The indictment does not negative, by particular averment, any specific fact sworn to by the defendant, and it is therefore bad. Rex v. Goodfellow, Car. & M. 569.

IV. There is nothing in the indictment to show, either by direct averment or by necessary implication, that the...