Juaraqui v. State

28 Tex. 625

• Court: Texas Supreme Court
• Decided: December 15, 1866
• Status: Published

Opinion

Wheeler, C. J.

—The indictment does not pursue the statutory definition of the offense, or use the words which the statute employs to describe it. (O. & W. Dig., p. 49, Art. 287.) The indictment ought to charge that the defendant “deliberately and willfully” swore falsely. It is always safer to use those words which the legislature has deemed most appropriate to describe the offense than to undertake to substitute others of equivalent meaning.

We think the indictment insufficient, in that it does not aver that the defendant swore falsely.

«The falsity of the statement ought to appear by averment, and not left to be adduced by argument and intendment. (Thomas v. The Commonwealth, 2 Rob., 795; State v. Garland, 3 Dev., 114.)

The conclusion that the defendant did “falsely, wickedly, willfully, and corruptly, in manner and form aforesaid, commit willful and corrupt perjury,” being matter of deduction from the previous averments, cannot supply the want of averments essential to the proper and legal description of the offense.

We think the defect indicated fatal to the indictment, and this disjDenses with the necessity of noticing other points and grounds of reversal relied on in argument.

The judgment is reversed, and the cause

Remanded.