E. C. Rohrer v. The State, 13 Tex. Ct. App. 163

Hurt, J. The appellant was convicted of perjury under an indictment, the charging part of which is as follows: “did then and there make his personal appearance before S. H. Strange, a justice of the peace in and for Bell county, Texas, and deliberately and wilfully make affidavit, the oath being then and there duly and legally administered by the said justice of the peace, who was then and there authorized by law to administer said oath, and take the said affidavit, that H. F.

Austin was justly indebted to him, Rohrer, in the following items and amounts, to-wit: advertising, $9.90; work, $8.00; polishing and recording goods, $6.00; selling and taking care of goods, 30 days, $45.00; agreement with James for rent at $10 per month for six months, $60.00; paid drayage, 75c.; and filed the same with the said justice of the peace for suit against said H. F. Austin. That the said affidavit aforesaid was material and necessary for the purpose of prosecuting the said suit against the said H. F. Austin, and that the said affidavit made by the said E. C.

Rohrer was false, which he the said Rohrer then and there well knew; and against the peace and dignity of the State.” The defendant moved in arrest of judgment, which motion was overruled by the court. Is this a good indictment for perjury? We think not, upon two grounds: 1. The indictment fails to set out the account, with the oath of defendant attached thereto.

It is true that this indictment sets out an account, and alleges that defendant swore to its correctness, etc., but it does not pretend to insert the instrument to which defendant swore before the justice of the peace, nor does it contain the oath administered to the defendant by the justice. This we think is fatal. 2. The averment in said indictment that the affidavit made by the defendant was false, which he well knew, is not an assignment of perjury.

In order to negative the false matter the indictment must proceed by particular averments (or, as they are technically termed, assignments of perjury,) to negative that which is false, and it is necessary that the indictment should thus expressly contradict the matter falsely sworn to by the defendant. The usual form for denying the false matter is as follows : “Whereas, in truth and in fact the said H. F.

Austin was not indebted to the defendant for advertising, work, or polishing and recording goods,” etc., or that defendant had not allowed the said Austin all proper and legal credits, etc., selecting those items which are false, and thus making them the assignment of perjury. All of the items or particulars to which defendant falsely swore, may be embraced in one count.

While it may be necessary to set forth the whole matter to which the defendant swore, in order to make the rest intelligible, though some of the circumstances had a real existence, yet the word falsely does not import that the whole is false, and when the proper averments come to be made- it is not necessary to negative the whole, but only such parts as the prosecutor can falsify, admitting the truth of the rest. This indictment simply alleges that the affidavit made by defendant was false, and that he knew it. In what particular was it false? What item in the account?

Did the falsity consist in the amount of the item? if so, which one? Or did it consist in failing to give Austin proper credits? To our mind such an indictment as this wholly fails to inform the defendant of what he is called upon to answer. As above stated, the word falsely does not import that the whole is false, but simply means that it is false in some particular. It may or may not be to the whole extent. It may or may not be false in regard to a matter which, could be made the basis of perjury.

It is too uncertain, and would admit proof not only in regard to the items of indebtedness and credit, but dates, etc. Suppose an account contained an hundred items; under such an indictment the correctness of each item would be put in issue. How could defendant prepare to meet such an indictment except by preparation to meet every item? These assignments, however, to be good must be in regard to a material matter—a matter upon which an assignment of perjury could legally be made. An affidavit may be false, and yet not in regard to a matter upon which án assignment of perjury can be legally made. (Whart. Crim.

Law., sections 1300-1-2-3; Bishop’s Crim. Procedure, sections 918, 919, 921.) We call attention to the variance between the items charged in the indictment and those shown in the proof. If this indictment were good, we are of the opinion that the variance above alluded to would be fatal to the judgment. The court erred in overruling the motion in arrest of judgment; for which the judgment is reversed and the prosecution dismissed. jReversed and dismissed. Opinion delivered November 11, 1882.