Rambo, Alias Coombs, Etc. v. State

64 S.W. 1039, 43 Tex. Crim. 271, 1901 Tex. Crim. App. LEXIS 130

• Court: Court of Criminal Appeals of Texas
• Decided: October 30, 1901
• Docket: No. 2381.
• Status: Published

Opinion

HENDEBSON, Judge.

Appellant was convicted of perjury, and his punishment assessed at two years confinement in the penitentiary; hence this appeal.

It is assigned as error that the written instrument, which was a complaint made by appellant charging an aggravated assault to have been committed by one W. C. Mitchell upon Ada Mitchell, in proper form, made before Lee Hawkins, county attorney of Ellis County, could not be made the predicate of perjury. An affidavit of this character is authorized by law to be taken by county attorneys in the prosecution of misdemeanors. Articles 34, 35, Code Crim. Proc.; Thomas v. State, 37 Texas Crim. Rep., 142. Such an affidavit is the beginning of a judicial procedure, and the oath is required by law as the basis for the prosecution. Such oath so taken comes within our statute defining perjury (article 303, Penal Code). Langford v. State, 9 Texas Crim. App., 283. This is not like the case of Davidson v. State, 22 Texas Criminal Appeals, 373. In that case the affidavit was simply a voluntary affidavit in order to procure a marriage license, and was not in the course of any judicial proceeding. We have examined the indictment, and, in our opinion, it sufficiently charges the offense. The charge of the court is pertinent to a state of facts provable thereunder. The record contains no statement of facts.

There being no error in the record, the judgment is affirmed.

Affirmed.