Steher v. State

• Decision Date: 09 March 1887
• Citation: 4 S.W. 880
• Court: Texas Court of Appeals
• Parties: STEHER v. STATE.<SMALL><SUP>1</SUP></SMALL>

4 S.W. 880

STEHER v. STATE.¹

Court of Appeals of Texas.

March 9, 1887.

Appeal from district court, Rusk county.

This conviction was for false swearing, and a term of two years in the penitentiary was the penalty awarded. The material facts are sufficiently disclosed in the opinion.

J. H. Wood, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

This appeal is from a judgment of conviction for "false swearing," and the false swearing was assigned upon a statement or declaration made by appellant in an affidavit before the county clerk for the purpose of obtaining a marriage license for one Jesse Wells and one Savannah Stovall to marry; the false matter assigned consisting in a statement contained in said affidavit "that Savannah Stovall's mother was willing for Savannah to marry Jesse Wells;" said Savannah being at the time only 15 years of age.

Many of the questions raised in the assignment of errors and brief of counsel have already been decided by this court in the analogous case of Davidson v. State, 22 Tex. App. 376, 3 S. W. Rep. 662. In that case it was held that such an affidavit, and for such a purpose, taken by a county clerk, was legal and valid under the general authority conferred by statute upon county clerks to take affidavits, (Rev. St. art. 1149,) and that such an affidavit, while not assignable as perjury, being extrajudicial, was assignable and would support a prosecution for "false swearing" under our statute defining that offense. Pen. Code, art. 196. It was not error to admit in evidence the purported affidavit made before the county clerk. Said affidavit was not variant to nor contradictory of any allegation in the indictment, but, on the contrary, tended directly and pertinently to support said allegations.

It is urgently insisted that the court erred in permitting the witness Andy Givens to testify that he did not give his consent that Savannah Stovall should marry Jesse Wells. It is established by the evidence that Savannah Stovall's mother had been dead some two years when the marriage license was obtained. After her mother's death, Savannah had lived in the family, and at the house of Givens. With reference to the girl, Givens in fact occupied the relation of one standing in loco parentis. Now, while it is true that, from an equitable standpoint, had such evidence been offered by defendant, his consent to the marriage would and should have tended strongly to have obviated the operation of law as to the illegality of the license, (Rev. St. art. 2841,) yet his consent or non-consent could throw no light upon the issue assigned for false swearing, to-wit, the consent or non-consent of Savannah Stovall's mother; and to prove his want of consent had a tendency, and, we think, a strong one under the circumstances, to prejudice the rights of defendant by immaterial and irrelevant matter. We are of opinion the evidence was inadmissible.

We are also of opinion that the charge of the court, under the peculiar facts of this case, should...