Louis Davidson v. The State, 22 Tex. Ct. App. 372

White, Presiding Judge. In order to obtain a marriage license, one Thomas Bratton made an affidavit, which was required of him by the county clerk, that his fiancee was eighteen years of age and that her parents had given their consent to the marriage. It turned out that neither of these sworn statements was true, and that the maiden was in fact only seventeen years of age. A prosecution was instituted in a very short time against Bratton by indictment based upon this affidavit, charging him with “ false swearing.” Bratton defended and procured this appellant to appear as a witness in his behalf.

Appellant’s testimony, in substance, was that Catherine Ross (the female in question) “ was a great big girl thirteen years ago; that she had not grown but very little since he became acquainted with her thirteen years ago; that he picked cotton with Catherine Ross thirteen years ago, and that she was then a good sized girl, big enough to pick cotton.” Notwithstanding this testimony Bratton was convicted of “ false swearing,” and his punishment was assessed at two years confinement in the penitentiary.

Appellant was then indicted for “perjury” in testifying as aforesaid on Bratton’s trial, and, having been convicted and sentenced to seven years in the penitentiary, he appeals to this court. It is contended that the county clerk had no authority to take Bratton’s affidavit in the premises, and that Bratton committed no offense in making it, and that if no offense was committed by Bratton then appellant’s testimony on the trial of Bratton could not support an assignment of perjury.

Had Bratton been indicted for perjury there might have been some plausability, if not reason, in this position, inasmuch as perjury can only be assigned upon an “oath or affirmation legally administered under circumstances in which an oath or affidavit is required by law, or is necessary for the prosecution or defense of any private right, or for the ends of public justice.” (Penal Code, Art. 188.) A county clerk is the only officer authorized by law to issue marriage licenses, and the same

Article which confers that authority upon him also empowers him “to administer all oaths and affirmations, and to take affidavits and depositions, to be used as provided by law in any of the courts.” (Rev. Stat., Art. 1149.) He is also generally empowered to take affidavits. (Rev. Stat., Art. 7.) He is expressly prohibited from issuing a license to marry without the consent of the parents or guardians of the parties applying, unless the parties so applying shall be, in the case of the male twenty-one years of age, and in the female eighteen years of age. (Rev.

Stat., Art. 2841.) But the law nowhere requires or authorizes the taking of an oath or affidavit of the age of the applicant in cases where the clerk is in doubt upon the subject. His authority to require such oath and affidavit for his own protection is, if at all, derived solely from his general power “ to administer all oaths and take affidavits.” Such being the case, it may well be questioned whether, under our law, an affidavit so made would be a legitimate basis for an assignment of perjury. Mr.

Desty, in his American Criminal Law, says perjury may be assigned on a false oath taken before a surrogate to obtain a marriage license. (Am. Crim. Law., sec. 75g.) Mr. Bishop, on the other hand, says: “In England a false oath taken before a surrogate to deceive him into granting improperly a marriage certificate, though not perjury, is a criminal misdemeanor.” (2 Bish. Crim. Law, 7 ed., sec. 1029.) In Ohio, perjury can be assigned upon such an oath. (Call v.

The State, 20 Ohio St., 330; 25 Ohio St., 21.) Our opinion is that it would not be a legitimate basis for an assignment of perjury under our statute, it being only a voluntary affidavit. Fot being for use in any of the courts, such an affidavit would be extra-judicial, and an extra-judicial oath lays no foundation for a prosecution of perjury, (U. S. v. Babcock, 4 McLean, 113; 2 Bish. Crim.

Law, 7 ed., sec. 1027.) And it seems clear that no oath whatsoever, taken before persons acting merely in a private capacity, or before those who take upon them to administer oaths of a public nature without legal authority for their so doing, or before those who are legally authorized to administer some kinds of oaths, but not those which happen to be taken before them, or even before those who take upon them to administer justice by virtue of an authority seemingly color able,, but in truth unwarrantable and merely void, can ever amount to perjury in the eye of the law, because they are of no manner of force, but are altogether idle. (1 Hawk.

P. C. Ch., 69, sec. 4).

In Fourth Blackstone’s Commentaries, 137, it is said: “ It is much to be questioned how far any magistrate is justifiable in taking a voluntary affidavit in any extra-judicial matter, as is now too frequent upon every petty occasion, since it is more than possible that by such idle oaths a man may frequently in foro conscientice incur the guilt and at the same time evade the temporal penalties of perjury.” But the indictment against Bratton was not for perjury, but for false swearing—a distinct specific offense under our code, which provides that, “If any person shall deliberately and willfully, under oath or affirmation legally administered, make a false statement by a voluntary declaration or affidavit which is not required by law or made in the course of a judicial proceeding, he is guilty of false swearing, and shall be punished by imprisonment in the penitentiary not less than two nor more than five years.” (Penal Code, Art. 196.) The distinction between perjury and false swearing is this, viz.: if the false statement be made in an oath or affidavit “required by law,” or made in “the course of a judicial proceeding,” the offense is perjury; if the false voluntary oath or affidavit is “not required by law or made in the course of a judicial proceeding,” then it is false swearing. (Langford v.

The State, 9 Texas Ct. App., 283.) Most clearly the clerk had authority to administer the oath, and a written declaration, or affidavit, as it is called, of Bratton, was a legitimate subject upon which to assign a charge of “false swearing,” though not of perjury.

The next question raised by appellant is that the matter assigned against him, as set out above, is not material; in other words, that the statements of defendant on Bratton’s trial, as to the size of the girl Catherine Ross, and the fact that she picked cotton thirteen years ago, was immaterial to the issue being tried—that issue being whether the girl was eighteen years old at the time Bratton made the affidavit to that effect.

The rule is that “a party not only commits perjury by swearing falsely and corruptly as to the fact which is immediately in issue, but also by swearing falsely and corruptly as to material circumstances tending to prove or disprove such fact; and this without reference to the question whether such fact does or does not exist. It is as much perjury to establish the truth by false testimony as to maintain a falsehood by such testimony.” (Bradberry v. The State, 7 Texas Ct. App., 375.) “If the statement tend even circumstantially to the proof of the issue, it will be deemed material.” (2 Arch. Crim.

Prac. and Plead., 8 ed., p. 1727.) “Testimony tending to affect the verdict of the jury, or extenuating or increasing the damage, and thus influencing the judgment of the court, is material. It is not necessary that the testimony should of itself be sufficient to sustain the issue in the case in which the witness is called, or that it should change the mode of punishment if in a criminal case. If it is pertinent to the issue; it is sufficient.” (King v. Rhodes, 2 Ld. Raymond, 887.) “In the case of the State v.

Hathaway (2 Nott. and McCord, 118), it was said that to constitute perjury it was not necessary that the particular fact sworn to should be immediately material to the issue, but it must have such a direct and immediate connection with a material fact as to give weight to the testimony on that point.” Mr. Bishop says: “The true test would seem in reason to be whether the evidence could have properly influenced the tribunal. * * * Where the incidental matter is calculated to incline the jury to give a more ready credit to the substantial part, it will sustain a conviction for perjury if willfully false.” (2 Bish.

Crim. L., 3 ed., secs. 1036, 1037.) It is evident that the testimony tended to strengthen Bratton’s affidavit that the girl was eighteen years old. A bill of exceptions was saved because the State was allowed to prove by the witness John, who had as attorney defended Bratton on his trial, what was witness’s object and purpose in calling this defendant to testify as a witness in that case. The reason and purpose, as well as the admissibility of the evidence is, we think, apparent.

Our code declares that “a false statement made through inadvertence or under agitation or by mistake is not perjury.” (Penal Code, Art. 189.) Now, if from information derived previously from the witness the attorney was induced to call him upon the stand to swear to the facts to which he did testify, it stands to reason that such statements, when thus sworn to, could not have been made through inadvertence nor been the result of agitation or mistake. •Another bill of exceptions was taken to the reading in evidence by the State, over objection, of the record including the judgment in the Bratton case.

It is contended that this evidence was both inadmissible and prejudicial to defendant’s rights. There was no error in admitting the evidence. Mr. Wharton says, “a prior judgment may be also admissible as part of the evidence on which the case for or against the defendant may be made out. This is eminently the case in proceedings for perjury, in which the record of the trial at which the alleged perjury was committed is admissible as inducement, though not to prove the perjury.” (Whart. Crim. Ev., 8 ed., sec. 602a; 1 Greenl., 13 ed.,

section 539.) But, having admitted the evidence properly, we look in vain for any instruction from the court explaining the object and purposes of its admission, and limiting the purposes for which it could legally be considered by the jury. They should at least have been told it was not to be considered as proof of the perjury. Without some such instruction the jury may have given it weight as evidence going to establish the perjury, and doubtless they did so.

It is a general rule that whenever extraneous matter is admitted in evidence for a specific purpose incidental to, but which is not admissible directly to prove the main issue, and which might tend, if not explained, to exercise a wrong, undue or improper influence upon the jury as to the main issue, injurious and prejudicial to the rights of a party, then it becomes the imperative duty of the court in its charge to so limit and restrict it as that such unwarranted results can not ensue; and a failure to do so will be radical and reversible error even though the charge be not excepted to.

Thus, “ where evidence of an extraneous crime is admitted for the purpose of showing intent or motive in the commission of the act alleged against him, it is the duty of the trial court, in charging the jury, to explain the purpose for which it was admitted and to limit its effect to this purpose alone.” (Long v. The State, 11 Texas Ct. App., 381; McCall v. The State, 11 Texas Ct. App., 353; Kelly v. The State, 18 Texas Ct. App., 262, Francis v. The State, 7 Texas Ct. App., 501.) Many illustrations might be given, but it is deemed unnecessary.

In this instance we think it is plainly apparent that the jury were in all probability unduly and improperly influenced by the evidence; because not limited and restricted in their consideration of it. Opinion delivered November 20, 1886. The materiality of the matter assigned as perjury is for the determination of the court, and it is error if it be left to be ascertained by the jury. (Donohue v. The State, 14 Texas Ct. App., 638; Jackson v. The State, 15 Texas Ct. App., 579.) But this objection urged by appellant’s counsel to the charge is not borne out by the record.

For the error in the charge as above pointed out, the judgment is reversed and the cause remanded. Reversed and remanded.