Waters v. State

• Decision Date: 24 October 1891
• Parties: WATERS v. STATE.
• Court: Texas Court of Appeals

17 S.W. 411

WATERS v. STATE.

Court of Appeals of Texas.

October 24, 1891.

Appeal from district court, Bell county; W. A. BLACKBURN, Judge.

J. H. Waters was convicted on indictment for perjury, and appeals. Reversed.

Saunders & Durrett, Monteith & Furman, McMahon & McMahon, and Harris & Saunders, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.

WHITE, P. J.

A motion to quash the indictment in this case contained nine grounds of objection to its validity and sufficiency. The first two refer to the allegation with reference to the officer before whom the alleged false affidavit was made. In the first it is objected that the indictment fails to show that the officer was authorized by law to administer oaths. This objection is answered fully by the allegation that "he (the said J. J. Lowery) was then and there duly and fully authorized by law to administer oaths." It had been previously alleged that said J. J. Lowery was a justice of the peace within and for said Bell county. The allegation that the officer was a "justice of the peace" was sufficient as to his official capacity. State v. Peters, 42 Tex. 7; Stewart v. State, 6 Tex. App. 184; and Bradberry v. State, 7 Tex. App. 375; Sayles' Civil St. art. 4. But, secondly, it is objected that the indictment is contradictory and uncertain upon its face in this: it charges that an affidavit in writing was made and signed by Waters before J. J. Lowery, acting as justice of the peace and ex officio notary public, while the jurat to the affidavit, which is set out in hæc verba in the indictment, is signed "J. J Lowery, J. P. Precinct No. 5, Bell County, Texas." It is insisted that because the jurat fails to show that J. J. Lowery was, as alleged, also ex officio notary public, as well as justice of the peace, therefore the repugnance is fatal. If the repugnance between the purport and tenor clauses of the indictment had related to Waters, the party charged with the perjury, then perhaps, indeed, the objection would have been fatal to the validity of the indictment. Westbrook v. State, 23 Tex. App. 401, 402, 5 S. W. Rep. 248; 2 Lead. Crim. Cas. (2d Ed.) pp. 101, 102. With regard to descriptive allegations of an indictment, if the indictment be set out subsequently in hæc verba, it has been held in some of the courts of England that the descriptive allegation contrary or repugnant to the tenor of the instrument as set out may be treated as surplusage. 2 Lead. Crim. Cas. (2d Ed.) p. 103. This, however, does not appear to be the rule in Texas, which is, if a pleader in a perjury case sets out the oath more minutely than he need, or needlessly describes the manner in which it was administered, such matter cannot generally be rejected as surplusage, and if the proof and averment do not correspond the process will fail by reason of the variance. Massie v. State, 5 Tex. App. 81. It is to be noted, however, in the case in hand, that there cannot be said to be a fatal repugnance between the purport and tenor clauses as to the official status and functions of the officer administering the oath, though the purport clause describes him as justice of the peace and ex officio notary public, and further alleges that he administered the oath acting as such justice of the peace and ex officio notary public. These allegations are not controverted or disproved by the officer's signature to the jurat as set out in hæc verba, for he signed the jurat as "J. P. Precinct No. 5, Bell County, Texas," simply omitting his further designation as ex officio notary public. It was unnecessary that the pleader should have designated him as ex officio notary public, because, as stated above, it was simply essential to allege that the oath was taken before him as a justice of the peace, — a justice of the peace being authorized to take such affidavit. Sayles' Civil St. art. 4. There being no repugnance between the purport and tenor clauses of this indictment, the only effect produced by the allegation that he was also notary public (if it could not be treated as surplusage) would have been to have required the pleader on the trial to prove that he was ex officio a notary public of Bell county. Our law constitutes him ex officio a notary public in addition to and by virtue of the fact that he is a justice of the peace. Const. art. 5, § 19; Sayles' Civil St. art. 1535. It appears from the foregoing that while such objection might have been good upon the ground of variance between the allegation and the proof, it could not be properly held to be a repugnancy between the purport and tenor clauses of the indictment, the tenor being simply and only a less full and complete description of his official capacity than that contained in the purport clause.

The 3d, 4th, 5th, and 6th grounds of the motion to quash the indictment are, in our opinion, directly contradicted by the averments in that instrument.

The seventh ground of the motion is in effect that the indictment fails to charge, in direct and positive terms, that Cora McMahon was dead; that her estate was in process of administration; and that the affidavit was made for the purpose of securing its allowance as a valid claim against the estate, as required by law We think this objection is not well taken. The affidavit was material, and is in effect averred to have been made for the purpose of enabling said J. H. Waters to establish, according to law, the note and claim against the estate of Cora McMahon, deceased. We think this allegation sufficiently avers the fact that Cora McMahon was dead, that the claim was sought to be established as a valid one against her estate by said affidavit, it having been previously alleged that said affidavit was administered "under circumstances in which an oath is required by law."

The eighth objection is that the indictment does not properly negative the truth of the matters stated in the allegation at the time said false affidavit is alleged to have been made. This objection is, in our opinion, hypercritical. We think it is fully met by the following allegation, viz.: "Which said statements [and each and all of said statements] so made by the said J. H Waters, as aforesaid, were willfully and deliberately false, and he (the said J. H....