State v. Powell , 28 Tex. 626 ( 1866 )

Smith, J.

—The appellee, Powell, was indicted for the offense of perjury, in making oath before the assessor and collector of Johnson county to the value of the list of taxable property rendered by him on that date, 23d May, 1863. On his motion the indictment was quashed for insufficiency, and the State has brought the cause here by appeal; and it is contended that the indictment was sufficient, and was wrongfully quashed.

It appears to be a well-settled principle that, in respect to the statement of the-accused upon which the perjury is assigned, it must "be averred positively that the accused had knowledge of the falsity of the statement, and that he “willfully and deliberately made it.” (Juaraqui v. The State, Galveston term, 1861, ante p. 625; 1 Robinson, 729; 8 Gratt., 579; 1 Greene, 503; 13 Tex., 27.)

The facts constituting the offense must be averred directly, forcibly, and with certainty, and not by way of inference and argument. (1 Tex., 455; 1 Dutch., 384.)

We are of opinion that the indictment in this cause, tested by these rules, is not sufficient. There is no positive averment that the defendant knew he had undervalued the property, and had willfully and deliberately made the false statement in respect to the value of the property rendered.

There are statements that the defendant, willfully, deliberately, and wickedly contriving to defraud the State out of a portion of her revenue, did, on the 23d May, 1863, make oath that the list of property rendered by him was true and correct, and “ a fair and full valuation ” of all his taxable property, when in truth and fact it did not “ contain a fair and just valuation” of all said taxable property, it being worth a large amount more that it was rendered and valued at. By means of which said statement in writing as aforesaid, deliberately and willfully made by the defendant, he was then and there guilty of willful and corrupt perjury.

The falsity of the statement as to the value of the property, and that it was willfully made and without deliberation, are only inferentially and not directly averred, and for that reason the indictment is not sufficient.

In order to constitute perjury, the oath'must be administered by some person authorized to administer the same in the matter in which the oath is taken, and in the manner required by law. (Penal Code, Art. 289.)

An assessor and collector has not a general authority to administer oaths, but has a special and limited authority, as designed in the act of 11th .of February, 1860, (Acts 8th Leg., p. 87; Paschal’s Dig., Art. 5176,) which reads as follows: “The 7th section of said act he so amended as hereafter to read as follows: Sec. 7. The list required under the 1st section of this act shall contain a description of taxable property in his or her own right, or held as guardian, executor, administrator, agent, or attorney, on the 1st day of January of the current year; whereupon the assessor and collector shall, and he is hereby required to, administer to each person the following oath: ‘"You do solemnly swear that the inventory rendered by you contains a full description of all your taxable property, owned or held in your own right, or as trustee, guardian, executor, administrator, agent, or attorney, (as the case may be,) on the 1st day of January last; and that the value assessed thereon is a fair and correct market value for the same, according to the best of your knowledge and belief.’ Said inventory and affidavit shall then be signed by the party rendering the same, and shall be attested by the assessor and collector.”

We are of opinion the assessor and collector had no authority to administer an oath to any statement not in compliance with the form here set-forth, substantially if not literally; that the statement of the defendant, as to the valuation of the property at the date of its rendition, 23d May, 1863, was not only unauthorized in the assessor and collector to require it, but was wholly immaterial to the matter in respect to which he had authority to administer an oath. It was only material to state the value of the property on the 1st day of January, 1863, and not at all important to state what its value was on the 23d of May, 1863. Por this reason the indictment is also defective. (Penal Code, Arts. 289, 290, 291; 7 Humph., 250; 1 Mich., 137.)

Other defects in the indictment are suggested, but will not be noticed.

There being no error apparent, the judgment below is

Affirmed.