Saunders v. State , 170 Tex. Crim. 358 ( 1960 )

MORRISON, Presiding Judge.

The offense is perjury; the punishment, two years.

We are met at the outset with the serious question of whether false testimony given before the Legislative Investigating Committee of the 1957 Regular Session of the Texas Legislature constitutes the offense of perjury or false swearing. The Legislature of this State, in its wisdom, has created two separate and distinct offenses covering the subject of bearing false witness and has assigned two different punishments therefor. The maximum punishment for false swearing is five years, while that for perjury is ten. By the enactment of Article 306, V.A.P.C., the Legislature has indicated that it intended the more severe punishment to be meted out to those who testify falsely in any stage of a judicial proceeding or before a grand jury, while the lesser punishment is assigned to those who testify falsely outside the course of a judicial proceeding. The question before us here appears to have been answered in Van Arsdale v. State, 149 Tex. Cr. Rep. 630, 198 S.W. 2d 271, where this Court said, “It follows that if there was no legal judicial proceeding pending, the false oath could not constitute perjury,” but we will pursue the matter further.

We observe at the outset that there does not appear any reported decision in which an accused was prosecuted for perjury committed before a legislative committee since the enactment of the statute 120 years ago.

Article 302, V.A.P.C., goes slightly further than Article 306, supra, and authorizes a prosecution for perjury in any case where the oath is “required by law” or is necessary “for the ends of public justice.” We shall discuss each of these phases of the statute in more detail.

Nowhere in our statutes may the requirement be found which demands that witnesses who testify before the Legislature or any of its committees shall be sworn. Article 5429a, V.A.R. C.S., merely empowers members of the Legislature to administer oaths to witnesses who appear before either House or a committee thereof and does no more than add members of the Legislature to those enumerated in Article 26, V.A.R.C.S., as those who are authorized to administer oaths.

Can it be said that an oath administered by any of those persons, such as a notary public, enumerated in Articles 26 or 5429a, supra, is, per se, one which is required by law? We think not. We must now see if House Simple Resolution No. 165, which created this committee, makes the oath of a witness who appeared before such committee one which is required by law. While it is true that Article III, Section 11, of the Constitution empowers either House, acting alone, to determine the rules of its own proceedings, it in nowise empowers either House, acting alone, to enact a law. Furthermore, the resolution itself does no more than the statutes heretofore mentioned and authorizes the administering of oaths. No action of the committee itself might grant it greater powers than had been granted by the House which created the committee.

We then come to the question of whether or not the oath taken by appellant was one which was necessary for the “ends of public justice.” This is a broad term, but so far as we have been able to ascertain has been applied exclusively to the enforcement of the law or preserving the integrity of the judicial process.

The only time we find the italicized phrase in Words & Phrases is in People v. Vaughn, 61 N.E. 2d 546, wherein it was held that a judge might call another grand jury when it was discovered that certain indictments had been returned by a prior illegal grand jury. There the statute empowered him to call' such a grand jury “at any time when he shall be of the opinion that public justice requires it.”

Since the Legislature which created the committee in question has not seen fit to require an oath of the witnesses appearing before it, this Court would be cast in the light of legislating were we to hold that the ends of public justice required that witnesses who come before a legislative committee be sworn. To say that public justice required the oath to be administered such witnesses would be to say that public justice required the administering of any oath. This we cannot do because we would thereby nullify Article 310, V.A.P.C., which denounces false swearing.

In view of this disposition of this cause, it will not be necessary to discuss the many other questions raised in appelant’s exhaustive brief.

Because the offense here alleged is false swearing and not perjury, the judgment is reversed and the prosecution is dismissed.