Appellant was indicted, tried and convicted of perjury, and his punishment assessed at two years confinement in the State penitentiary.
There is no statement of facts accompanying the record, so the sole questions to be passed on are presented in the motion to quash the indictment, and in bill of exceptions No. 1. One ground of the motion to quash the indictment is that the indictment showing on its face that the oath was administered by the county attorney, under the direction of the foreman of the grand jury, the indictment should be quashed, as the county attorney is not authorized to administer oaths to witnesses before the grand jury. In bill of exceptions No. 1 it is shown that the defendant objected to proof being made that the county attorney administered the oath to the witness, and proof that the oath was
administered by him under the direction of the foreman of the grand jury. So the question presented in both the motion and the bill of exceptions may be considered together, for if the county attorney was authorized to administer the oath under the direction of the foreman, the testimony was admissible, and if he was not, this would be fatal to the indictment. That appellant testified falsely before the grand jury, we must presume in the absence of a statement of facts. So the sole question to be decided is, was the county attorney, under the law, authorized to administer the oath. If he was, the case should be affirmed; if not, then it should be reversed and dismissed.
Appellant cites us to the case of Thomas v. State, 37 Tex. Crim. 142; 38 S.W. Rep., 1011, in which it was held that as the oath to the complaint was taken before the county attorney of Erath County, it could not be the basis for an information filed by the county attorney of Hood County, in the County Court of the latter county, this case merely holding that the authority of the county attorney to take oaths was limited to the county in which he was elected. However, in the case of Williams v. State,50 Tex. Crim. 269; 96 S.W. Rep., 47, it is held that the county attorney has no authority to swear a witness in any instance, but his authority is limited solely to swearing a person to a complaint, and he has authority to swear a witness in no instance, and if this is the law appellant's motion must be sustained. In the Williams case it was held that where the county attorney summoned a witness to testify in regard to gambling transactions he had no authority to administer an oath to such witness. Article 574 of the Criminal Code provides: "Any court, officer, or tribunal, having jurisdiction of the offenses enumerated in this chapter, or any district or county attorney,
may subpœna persons and compel their attendance as witnesses to testify as to the violations of any of the provisions of the foregoing articles." (These articles relate to gaming in every conceivable form.) What was the object and purpose of this provision of the Code in authorizing district and county attorneys to summon witnesses before them to testify as to violations of the gaming laws if they were not authorized to administer oaths to such persons? To us it seems but folly to say they have authority to subpœna and compel the attendance of witnesses to testify, and yet such officers have no authority to administer oaths to such persons. Article 9 of the Penal Code provides that the Code, and every other law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects. This article has been frequently before this court, and it has consistently been held that it does away with the strict construction of penal statutes and substitutes therefor the plain import of the language in which they are written. (Randolph v. State, 9 Tex. 521; Ex Parte Gregory, 20 Texas Crim. App., 210; Murray v. State, 21 Texas Crim. App., 620; Searcy v. State, 40 Tex. Crim. 460; Bowman v. State, 38 Tex.Crim. Rep..) And it has further been held that the courts must be controlled by the legislative intent when that is plainly manifest. Ex Parte Robinson, 28 Texas Crim. App., 511; Ex Parte Creel, 29 Texas Crim. App., 439; Rigby v. State, 27 Texas Crim. App., 55, and Brooks v. Hicks, 20 Tex. 666. The clear intent and purpose of the Legislature is, we think, manifest by this Act of the Legislature, and it authorized the district and county attorneys to summon witnesses before them, swear them and compel them to testify in regard to violations of the laws against gambling, and the Williams case, supra, so far as it is in conflict with this view, is not the law; and it was so held by this court in a well considered opinion by Presiding Judge Davidson, in the case of Bailey v. State, 53 S.W. Rep., 117, wherein he said: "Appellant's first proposition is that the county attorney is not an officer authorized to administer oaths under such circumstances. Under the terms of the statute, the county attorney is authorized to administer such oaths. Code Cr. Proc., Art. 34; Pen. Code, Art. 391. The latter article provides that `any court officer or tribunal having jurisdiction of the offense enumerated in this chapter, or any district or county attorney, may subpœna persons and compel their attendance as witnesses to testify as to violation of any of the provisions of the foregoing articles.' The portion of the section quoted applies directly to violations of the gaming laws. Construing these two sections together, we think there is no question of the authority of the county attorney to administer the oath as was done in this case. Article 391 would be a dead letter on the statute book, if it gave authority to the county attorney to bring witnesses before him in order to inquire into violations of the gaming laws, and failed to carry with it authority to compel the testimony of the witnesses under oath; and it would seem to render nugatory the provisions of article 34 of the Code of Criminal Procedure, if he were not authorized to administer oaths." The reasoning in this case appeals more strongly to our judgment, and is, in our opinion, a more correct exposition of this law.
Article 439 of the Code of Criminal Procedure provides that "the following oath shall be administered by the foreman of the grand jury, or under his direction, to all witnesses before being interrogated." (Then follows the oath.) Who are authorized by law to be with the grand jury in the investigation of violations of the law? Only the twelve grand jurymen and the district and county attorney. No authority in law is found for any other person to be present. Then what does the law mean when it says that the oath must be administered by the foreman or under his direction? It certainly means, and this was the clear intention of the Legislature, that the oath must be administered by some person, under the direction of the foreman, authorized by the law to be in attendance upon the grand jury, and if the oath is administered by either member of the grand jury, or any person authorized by law to be in attendance upon the grand jury, it is an oath within the meaning of the law, and upon which the crime of
perjury can be based.
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Appellant was indicted, tried and convicted of perjury, and his punishment assessed at two years confinement in the State penitentiary.
There is no statement of facts accompanying the record, so the sole questions to be passed on are presented in the motion to quash the indictment, and in bill of exceptions No. 1. One ground of the motion to quash the indictment is that the indictment showing on its face that the oath was administered by the county attorney, under the direction of the foreman of the grand jury, the indictment should be quashed, as the county attorney is not authorized to administer oaths to witnesses before the grand jury. In bill of exceptions No. 1 it is shown that the defendant objected to proof being made that the county attorney administered the oath to the witness, and proof that the oath was
administered by him under the direction of the foreman of the grand jury. So the question presented in both the motion and the bill of exceptions may be considered together, for if the county attorney was authorized to administer the oath under the direction of the foreman, the testimony was admissible, and if he was not, this would be fatal to the indictment. That appellant testified falsely before the grand jury, we must presume in the absence of a statement of facts. So the sole question to be decided is, was the county attorney, under the law, authorized to administer the oath. If he was, the case should be affirmed; if not, then it should be reversed and dismissed.
Appellant cites us to the case of Thomas v. State, 37 Tex. Crim. 142; 38 S.W. Rep., 1011, in which it was held that as the oath to the complaint was taken before the county attorney of Erath County, it could not be the basis for an information filed by the county attorney of Hood County, in the County Court of the latter county, this case merely holding that the authority of the county attorney to take oaths was limited to the county in which he was elected. However, in the case of Williams v. State,50 Tex. Crim. 269; 96 S.W. Rep., 47, it is held that the county attorney has no authority to swear a witness in any instance, but his authority is limited solely to swearing a person to a complaint, and he has authority to swear a witness in no instance, and if this is the law appellant's motion must be sustained. In the Williams case it was held that where the county attorney summoned a witness to testify in regard to gambling transactions he had no authority to administer an oath to such witness. Article 574 of the Criminal Code provides: "Any court, officer, or tribunal, having jurisdiction of the offenses enumerated in this chapter, or any district or county attorney,
may subpœna persons and compel their attendance as witnesses to testify as to the violations of any of the provisions of the foregoing articles." (These articles relate to gaming in every conceivable form.) What was the object and purpose of this provision of the Code in authorizing district and county attorneys to summon witnesses before them to testify as to violations of the gaming laws if they were not authorized to administer oaths to such persons? To us it seems but folly to say they have authority to subpœna and compel the attendance of witnesses to testify, and yet such officers have no authority to administer oaths to such persons. Article 9 of the Penal Code provides that the Code, and every other law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects. This article has been frequently before this court, and it has consistently been held that it does away with the strict construction of penal statutes and substitutes therefor the plain import of the language in which they are written. (Randolph v. State, 9 Tex. 521; Ex Parte Gregory, 20 Texas Crim. App., 210; Murray v. State, 21 Texas Crim. App., 620; Searcy v. State, 40 Tex. Crim. 460; Bowman v. State, 38 Tex.Crim. Rep..) And it has further been held that the courts must be controlled by the legislative intent when that is plainly manifest. Ex Parte Robinson, 28 Texas Crim. App., 511; Ex Parte Creel, 29 Texas Crim. App., 439; Rigby v. State, 27 Texas Crim. App., 55, and Brooks v. Hicks, 20 Tex. 666. The clear intent and purpose of the Legislature is, we think, manifest by this Act of the Legislature, and it authorized the district and county attorneys to summon witnesses before them, swear them and compel them to testify in regard to violations of the laws against gambling, and the Williams case, supra, so far as it is in conflict with this view, is not the law; and it was so held by this court in a well considered opinion by Presiding Judge Davidson, in the case of Bailey v. State, 53 S.W. Rep., 117, wherein he said: "Appellant's first proposition is that the county attorney is not an officer authorized to administer oaths under such circumstances. Under the terms of the statute, the county attorney is authorized to administer such oaths. Code Cr. Proc., Art. 34; Pen. Code, Art. 391. The latter article provides that `any court officer or tribunal having jurisdiction of the offense enumerated in this chapter, or any district or county attorney, may subpœna persons and compel their attendance as witnesses to testify as to violation of any of the provisions of the foregoing articles.' The portion of the section quoted applies directly to violations of the gaming laws. Construing these two sections together, we think there is no question of the authority of the county attorney to administer the oath as was done in this case. Article 391 would be a dead letter on the statute book, if it gave authority to the county attorney to bring witnesses before him in order to inquire into violations of the gaming laws, and failed to carry with it authority to compel the testimony of the witnesses under oath; and it would seem to render nugatory the provisions of article 34 of the Code of Criminal Procedure, if he were not authorized to administer oaths." The reasoning in this case appeals more strongly to our judgment, and is, in our opinion, a more correct exposition of this law.
Article 439 of the Code of Criminal Procedure provides that "the following oath shall be administered by the foreman of the grand jury, or under his direction, to all witnesses before being interrogated." (Then follows the oath.) Who are authorized by law to be with the grand jury in the investigation of violations of the law? Only the twelve grand jurymen and the district and county attorney. No authority in law is found for any other person to be present. Then what does the law mean when it says that the oath must be administered by the foreman or under his direction? It certainly means, and this was the clear intention of the Legislature, that the oath must be administered by some person, under the direction of the foreman, authorized by the law to be in attendance upon the grand jury, and if the oath is administered by either member of the grand jury, or any person authorized by law to be in attendance upon the grand jury, it is an oath within the meaning of the law, and upon which the crime of
perjury can be based. As hereinbefore stated, Article 9 of the Code provides that every provision shall be construed according to the plain import of the language in which it is written, and the language of this provision clearly indicates that if the oath is administered by the foreman of the grand jury, or any person authorized by him, the oath will be binding. Whom can he authorize? Only such persons as are authorized by law to be in attendance upon the grand jury — the twelve grand jurymen, and the district and county attorney. The foreman of the grand jury could authorize either member of the grand jury or the district or county attorney, to administer this oath, giving to the act of the Legislature the plain meaning and intent of the words used by it, and as the indictment alleges that the county attorney did administer the oath in accordance with the directions of the foreman of the grand jury, we hold that the indictment is not fatally defective, — the allegation being that "Dock Barnes did then and there present himself and make his personal appearance to testify as a witness before said grand jury, and John A. Brewster, foreman of the said grand jury, did then and there direct H.N. Graves, the county attorney of said county, to administer the said oath to said witness, and the said Graves did then and there administer to the said Barnes the said oath as a witness," etc. We hold that the county attorney had authority in law to administer such oath, and a false statement made under the sanction of such oath would be perjury under the provisions of our law. And as we hold that the county attorney had authority to administer such oath, under the authority of the foreman of the grand jury, there was no error in admitting the testimony that such oath was administered under the direct authority given by the foreman of the grand jury.
The other grounds in the motion present no reason why the indictment should be quashed, as it was not necessary to allege whether the slaughter pen was located north, south, east or west of the town of Granger.
The judgment is affirmed.
Affirmed.
[Rehearing refused January 22, 1913. — Reporter.]