White, Presiding Judge.
This cause having been affirmed at the-Tyler branch just before adjournment, without a written opinion, appellant’s counsel, within the time allowed by the rules, submitted his motion for rehearing, which was ordered filed and the motion, and record transferred to this branch for determination.
Two objections to the sufficiency of the indictment were urged ire the lower court, both by motion to quash and in arrest of judgment. The prosecution was for perjury, and the perjury was alleged to have been committed by defendant in his testimony given as a wit- ; ness upon the trial of one Yince Johnson, in the county court of Bell county, upon a charge of unlawfully carrying a fire-arm, viz., a double-barrel shot-gun, into a house where persons were assembled for amusement.
The first objection to the indictment for perjury against this appellant was and is that said indictment fails to allege the venue iff the offense charged in the case against Yince Johnson, on the ¡ trial of which the perjury -assigned in this case was committed. [434]*434To this objection we deem it only necessary to make the following quotation from this indictment, viz.: “Whereupon it then and there became and was material and necessary for the due and proper enforcement of the penal laws of the State against the having and carrying of fire-arms into houses where people are assembled for amusement, to inquire of said Ben Powers, as aforesaid, whether the said Yince Johnson did in the county of Bell aforesaid, at the time as charged, carry about his person and have a double-barrel shotgun in a house where people were assembled for amusement, as charged,” etc. Counsel must have overlooked this allegation when interposing the objection. At all events, in our opinion, it fully meets and answers his objection.
2d. It is objected to this indictment that it is fatally defective in that it fails to allege that the case against Yince Johnson, in which the perjury was committed, was being prosecuted in the county court either by or under an indictment or information, and that such an allegation is essential to show the jurisdiction of the county court at the time it was trying the case in which the perjury of defendant was committed. Touching the nature and character of the proceeding in the county court, the charge in the indictment is that defendant “ did then and there make his personal appearance before the county court, then and there regularly in session for the trial of criminal causes, with Hon. W. M. Minyard, county judge of said county, then and there presiding; and a certain criminal cause being then and there on trial before said court, in which cause The State of Texas was plaintiff and one Yince Johnson was defendant, in which cause said Yince Johnson was charged with unlawfully carrying a fire-arm, to wit, a double-barrel shot-gun, about his person into a house where people were then and there assembled for amusement, which charge stated and accused said Yince Johnson of a violation of the penal law of the State of Texas; which said cause said court then, and there had full and competent jurisdiction to try and determine,” etc.
• Independently of this positive declaration of jurisdiction, was it further necessary to the validity of this indictment that it should allege that the prosecution against Yince Johnson was by information or indictment • '
We are free to admit that under two decisions of our supreme, court it would seem that such an allegation was essentially necessary. In The State v. Webb, 41 Texas, 68, it was held that “ an indictment for perjury which charges the false statement under oath, to have been made on the.trial of a party charged with a criminal [435]*435offense is bad if it fails to state that an indictment had been found against such party, or that the case in which the false statement was made was one over which the court trying it had jurisdiction.” And in The State v. Oppenheimer, 41 Texas, 82, it was held that an indictment for perjury should state when and where the judicial proceeding was pending in which the false statement was made, the name of the judge, court or officer before whom it was made, and whether it was made during an examination or on a trial under indictment. But we cannot tell, from the published report of either of said cases whether or not, as in the case at bar, there was in the indictments in said cases an allegation expressly, affirmatively and positively alleging that the court did have jurisdiction of the case in which the witness committed perjury. Most clearly, to our minds, both in reason and under the approved modern authorities, and especially under our Codes, such allegation is not essential where the indictment does, as is the case here, allege in general terms that the court had jurisdiction to try the case; though, perhaps,it would be as well if not the better practice for the pleader to show how its jurisdiction was acquired, that is, whether by indictment or information.
Outside our own State, Mr. Bishop announces the rule as it now obtains thus: “ A jurisdiction in the court or other official person being an element without which there can be no perjury, this fact must, as we have seen, be disclosed in some way in allegation. On principle, seeing that such matter is only inducement, it would be sufficient either to charge in words that the officer or tribunal had jurisdiction of these questions, or to aver facts from which the jurisdiction would in law appear,— both not being required.” . . . “Assuming a recitation of the record of the proceedings wherein the perjury was committed not to be required, the allegation may be that at a time and place, before a court, etc., named, an issue the particulars whereof need not be given, between parties named, came on to be and was in due form of law heard and tried.” (Bish. Crim. Proc. (3d ed.), §§ 910, 911.)
Mr. Wharton says: “ Under recent statutes in most jurisdictions the detailed nature of the authority of the court need not be given.” (Whart. Or. L. (8th ed.), § 1288.)
With regard to the pleadings in cases of perjury under our Oodes, Moore, J., in Allen v. The State, said: “ The averments introductory ,to the statement of the false testimony, and those which are inci- ,' dental and collateral to it, such, for instance, as refer to the tribunal in which the false testimony was given and its authority to admin[436]*436ister the oath, the nature of the proceedings pending before it, and its jurisdiction on the same, are not, it is true, set forth in the indictment with that particularity of detail which was common in the English courts prior to the statute of 23 Geo. II., ch. 11, and in some of the American States where this or a similar statute is not in force. (State v. Gallemore, 2 Ired., 372; Lodge v. Comm., 2 Gratt., 579.) This particularity of statement, however, in regard to introductory matters by-way of predicate for the averment of the facts which constitute the offense, has not been customary in indictments of this kind in our courts even before the adoption of the Code; since which all that is required in charging an offense is that it be set forth in plain and intelligible words; the obvious import of which is, if each of the essential constituents of the offense as defined by the Code is alleged in plain and intelligible words in the indictment, it is sufficient.” (41 Texas, 12. See, also, Bradberry v. The State, 7 Texas Ct. App., 375; West v. The State, 8 Texas Ct. App., 119; Peters v.
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White, Presiding Judge.
This cause having been affirmed at the-Tyler branch just before adjournment, without a written opinion, appellant’s counsel, within the time allowed by the rules, submitted his motion for rehearing, which was ordered filed and the motion, and record transferred to this branch for determination.
Two objections to the sufficiency of the indictment were urged ire the lower court, both by motion to quash and in arrest of judgment. The prosecution was for perjury, and the perjury was alleged to have been committed by defendant in his testimony given as a wit- ; ness upon the trial of one Yince Johnson, in the county court of Bell county, upon a charge of unlawfully carrying a fire-arm, viz., a double-barrel shot-gun, into a house where persons were assembled for amusement.
The first objection to the indictment for perjury against this appellant was and is that said indictment fails to allege the venue iff the offense charged in the case against Yince Johnson, on the ¡ trial of which the perjury -assigned in this case was committed. [434]*434To this objection we deem it only necessary to make the following quotation from this indictment, viz.: “Whereupon it then and there became and was material and necessary for the due and proper enforcement of the penal laws of the State against the having and carrying of fire-arms into houses where people are assembled for amusement, to inquire of said Ben Powers, as aforesaid, whether the said Yince Johnson did in the county of Bell aforesaid, at the time as charged, carry about his person and have a double-barrel shotgun in a house where people were assembled for amusement, as charged,” etc. Counsel must have overlooked this allegation when interposing the objection. At all events, in our opinion, it fully meets and answers his objection.
2d. It is objected to this indictment that it is fatally defective in that it fails to allege that the case against Yince Johnson, in which the perjury was committed, was being prosecuted in the county court either by or under an indictment or information, and that such an allegation is essential to show the jurisdiction of the county court at the time it was trying the case in which the perjury of defendant was committed. Touching the nature and character of the proceeding in the county court, the charge in the indictment is that defendant “ did then and there make his personal appearance before the county court, then and there regularly in session for the trial of criminal causes, with Hon. W. M. Minyard, county judge of said county, then and there presiding; and a certain criminal cause being then and there on trial before said court, in which cause The State of Texas was plaintiff and one Yince Johnson was defendant, in which cause said Yince Johnson was charged with unlawfully carrying a fire-arm, to wit, a double-barrel shot-gun, about his person into a house where people were then and there assembled for amusement, which charge stated and accused said Yince Johnson of a violation of the penal law of the State of Texas; which said cause said court then, and there had full and competent jurisdiction to try and determine,” etc.
• Independently of this positive declaration of jurisdiction, was it further necessary to the validity of this indictment that it should allege that the prosecution against Yince Johnson was by information or indictment • '
We are free to admit that under two decisions of our supreme, court it would seem that such an allegation was essentially necessary. In The State v. Webb, 41 Texas, 68, it was held that “ an indictment for perjury which charges the false statement under oath, to have been made on the.trial of a party charged with a criminal [435]*435offense is bad if it fails to state that an indictment had been found against such party, or that the case in which the false statement was made was one over which the court trying it had jurisdiction.” And in The State v. Oppenheimer, 41 Texas, 82, it was held that an indictment for perjury should state when and where the judicial proceeding was pending in which the false statement was made, the name of the judge, court or officer before whom it was made, and whether it was made during an examination or on a trial under indictment. But we cannot tell, from the published report of either of said cases whether or not, as in the case at bar, there was in the indictments in said cases an allegation expressly, affirmatively and positively alleging that the court did have jurisdiction of the case in which the witness committed perjury. Most clearly, to our minds, both in reason and under the approved modern authorities, and especially under our Codes, such allegation is not essential where the indictment does, as is the case here, allege in general terms that the court had jurisdiction to try the case; though, perhaps,it would be as well if not the better practice for the pleader to show how its jurisdiction was acquired, that is, whether by indictment or information.
Outside our own State, Mr. Bishop announces the rule as it now obtains thus: “ A jurisdiction in the court or other official person being an element without which there can be no perjury, this fact must, as we have seen, be disclosed in some way in allegation. On principle, seeing that such matter is only inducement, it would be sufficient either to charge in words that the officer or tribunal had jurisdiction of these questions, or to aver facts from which the jurisdiction would in law appear,— both not being required.” . . . “Assuming a recitation of the record of the proceedings wherein the perjury was committed not to be required, the allegation may be that at a time and place, before a court, etc., named, an issue the particulars whereof need not be given, between parties named, came on to be and was in due form of law heard and tried.” (Bish. Crim. Proc. (3d ed.), §§ 910, 911.)
Mr. Wharton says: “ Under recent statutes in most jurisdictions the detailed nature of the authority of the court need not be given.” (Whart. Or. L. (8th ed.), § 1288.)
With regard to the pleadings in cases of perjury under our Oodes, Moore, J., in Allen v. The State, said: “ The averments introductory ,to the statement of the false testimony, and those which are inci- ,' dental and collateral to it, such, for instance, as refer to the tribunal in which the false testimony was given and its authority to admin[436]*436ister the oath, the nature of the proceedings pending before it, and its jurisdiction on the same, are not, it is true, set forth in the indictment with that particularity of detail which was common in the English courts prior to the statute of 23 Geo. II., ch. 11, and in some of the American States where this or a similar statute is not in force. (State v. Gallemore, 2 Ired., 372; Lodge v. Comm., 2 Gratt., 579.) This particularity of statement, however, in regard to introductory matters by-way of predicate for the averment of the facts which constitute the offense, has not been customary in indictments of this kind in our courts even before the adoption of the Code; since which all that is required in charging an offense is that it be set forth in plain and intelligible words; the obvious import of which is, if each of the essential constituents of the offense as defined by the Code is alleged in plain and intelligible words in the indictment, it is sufficient.” (41 Texas, 12. See, also, Bradberry v. The State, 7 Texas Ct. App., 375; West v. The State, 8 Texas Ct. App., 119; Peters v. The State, 42 Texas, 7; Cox v. The State, 13 Texas Ct. App., 479.)
How, as we have seen, the jurisdiction and competency of the county court to hear and try the case of Vince Johnson was directly and positively averred. Besides this, the facts constituting the offense which was on trial in the county court are also distinctly set forth and the parties to the proceeding named. From these allegations it is manifest that .the case on trial was a criminal case, that it was a misdemeanor, and from the facts stated this court judicially knows that it was a case within the jurisdiction of the county court, and that it could be tried in that court either by information or indictment, and furthermore we know that it is immaterial as to the guilt or punishment of defendant for the perjury assigned, under which form of prosecution the case was being tried when he committed the perjury. Whilst, perhaps, it would have been more explicit and satisfactory had the pleader informed us as to the form of the accusation against Vince Johnson, that is, whether it was by information or indictment, we cannot see that his failure to do so can affect the validity of the indictment in this case,— which indictment, in our opinion, contains all the essential allegations for a charge of perjury under our Code.
So far as the other objections urged to the indictment'by. learned counsel for appellant are concerned, suffice it to say that we have shown that the jurisdiction of the county court is sufficiently alleged; and it is a rule with regard to other matters of procedure not concerning the perjury per se, that “regularity will be pre-'j sumed if the foundations be laid by an accurate statement of juris[437]*437diction.” (2 "Wharfs Precedents for Indictments and Pleas (4th ed.), § 577, p. 5 and note.)
We have carefully reconsidered the record in this case in connectian. with appellant’s motion for rehearing. The questions herein discussed are the only ones of any appreciable importance in the record on this appeal, and our views herein expressed are those which induced us to affirm the judgment at Tyler. No reversible error has been made to appear in any of the proceedings had at the trial in the lower court; wherefore the motion of appellant for a rehearing and reversal of the judgment is overruled.
Rehearing refused.
[Opinion delivered January 17,1885.]