Harkreader v. State , 35 Tex. Crim. 243 ( 1895 )

The appellant was convicted in the court below on a charge of false swearing, and his punishment assessed at two years in the penitentiary. From the judgment and sentence of the lower court he prosecutes this appeal. The charge under which the indictment for false swearing was predicated in this case was that appellant made a voluntary affidavit in writing before O.L. Bishop, Deputy County Clerk of Johnson County, Texas, that one Miss Ruby Lee Porter was 18 years of age, and that there existed no legal objections to the marriage of said Miss Porter to affiant. The first assignment of error calls in question the ruling of the court in allowing the State to prove that the father and mother of Miss Porter objected to her marriage with appellant. It is contended by appellant that said testimony is wholly immaterial, and that the indictment did not allege the objection of her parents to the marriage. The indictment in this case does charge that there were no legal objections to said marriage, and the father and mother were the only persons who could have objected to said marriage; and, although their daughter might have been under age, they could have legalized the marriage by giving their consent thereto. The affidavit on which the perjury was based also contains the allegation that there were no legal objections to said marriage, and this particular affidavit was also traversed by the indictment; so that it would appear that this was an element of the perjury assigned. But, conceding that said testimony was not material, yet we fail to see how the admission thereof could have injured the appellant. The appellant offered to prove that he presented Miss Porter with a number of presents, some of said presents being useful for housekeeping, and that she still retained all of said property in her possession, with the knowledge and consent of her parents. Appellant claims that this testimony was admissible for the purpose of showing that her parents were consenting to said marriage. The court, in explaining this bill of exceptions, shows that no proof was offered by appellant tending to show that he had given Miss Porter any presents during the month previous to making the affidavit, and that he only offered to prove generally that, pending their engagement, he had given her presents. It does not occur to us that this testimony was material, or that the court erred in excluding the same. The principal ground of contention on the part of appellant why this case should be reversed is because the deputy clerk, O.L. Bishop, before whom said affidavit was made, was not at the time 21 years of age; that he was at said date only 20 years old. The grounds urged by appellant are: First, because it appeared that O.L. Bishop, the party who administered said oath as Deputy County Clerk, was at said time a minor, under 21 years of age, and could not act as Deputy County Clerk, and that the affidavit was therefore void; second, because, said affidavit not being one required to be taken by the County Clerk in the discharge of his official duty, the deputy could not take the same for the County Clerk. Our statute defining perjury and false swearing requires that the oath shall be taken before an officer authorized to administer oaths, and if a minor, under the laws of this State, can be appointed a Deputy County Clerk, then it follows that he is such an officer as can administer an oath. Our statutes with reference to County Clerks, and the appointment of deputies, so far as they bear upon this question, are as follows: Article 1142, Sayles' Civ. Stat., provides that there shall be a County Clerk for each county, who shall be elected at a general election for members of the legislature by the qualified voters of such county, who shall hold his office for two years, and until his successor shall have duly qualified. Article 1144, Id., indicates the form of bond and oath required. Article 1145, Id., authorizes the Clerk of the County Court to appoint one or more deputies, by written appointment under his hand and seal of court, which appointment shall be recorded in the office of such Clerk of the County Court, and shall be deposited in the office of the Clerk of the District Court. Article 1146, Id., is as follows: "Such deputies shall take the oath of office prescribed by the Constitution. They shall act in the name of their principal, and may do and perform all such official acts as may be lawfully done and performed by such clerk in person." Article 1149, Id., says that such clerk shall be authorized to issue all marriage licenses, to administer all oaths and affirmations, and to take affidavits and depositions to be used as provided by law in any of the Courts. There is no statute defining the qualifications of deputy Clerks, or what character of persons may be appointed to said office. Article 2471, Sayles' Civ. Stat., defines who are minors, making all male persons under 21 years of age minors. Article 3361a et seq., Sayles' Civil Stat., regulates the removal of the disabilities of minors, and authorizes the District Courts, on petitions setting up sufficient grounds, to remove the disabilities of minors over the age of 19 years; and provides, that after such adjudication the minor shall be deemed of full age for all legal purposes, except that he shall not have the right to vote. We have examined the decisions of out own courts, but we can find but one bearing upon the subject now under consideration. Steusoff v. State, 80 Tex. 429 [80 Tex. 429]. Looking into the decisions of the courts of other States as to this and kindred subjects, we find the rule stated to be this: If the office is ministerial, such as calls for the exercise of skill and diligence only, minors may legally hold the same, and execute the duties thereof; but if the office is a judicial one, or one which concerns the administration of justice, on account of their inexperience, and want of judgment and learning, they cannot be appointed to same. In Golding's Case, 57 N.H. 146, S.C. 24 Amer. Rep., 66, which is relied on by counsel for appellant, the rule is stated as above. In that case, however, it was held that a minor, could not hold the office of Justice of the Peace, the same being a judicial office. In the case of United States v. Bixby, 9 Fed., 78, the indictment charged that the defendant committed perjury in swearing to the truth of a quarterly report as assignee in bankruptcy, before Auretus W. Hateh, a notary public. The defendant set up that the said Hatch was a minor under 21 years of age, and could not hold the office of notary public, and so the oath taken before him was not before an officer authorized to administer oaths. The court held in that case that there was nothing in the statutes of Indiana inhibiting minors from holding the office of notary public; that, the notarial office being ministerial, and not judicial, the rule at common law would govern. The court further says: "Unlike most of the States, Indiana has not declared, in her constitution or statutes, that only those who have attained the age of 21 years shall be eligible to any public or civil office. While at common law persons are not admitted to the full enjoyment of political and civil rights until they have attained the age of 21 years, yet infants are capable of executing mere powers and, as agents, of making binding contracts with others. In England they are allowed to hold the offices of park-keepers, foresters, jailer, and mayor of a town; and in both England and this country they are capable of holding and discharging the duties of such mere ministerial offices as call for the exercise of skill and diligence only. They are not eligible to the offices which concern the administration of justice, on account of their inexperience and want of judgment and learning." Referring to Rex v. Dilliston, 3 Mod. 222; Tyler, Inf. § 78. In Wilson v. Newton, 87 Mich. 493; S.C., 2 Amer. Rep., 173,, the question was whether a woman could be appointed to the office of Deputy County Clerk. The statutes of that State in regard to the qualifications of clerks and deputies are very similar to our own statutes on the subject: The court holds in that case that the office of County Clerk is wholly ministerial, and when the law provides that a ministerial officer may appoint a deputy, for whose acts he and his sureties are responsible, and does not limit or restrict him as to whom hie appoints, he has authority to appoint whomsoever he pleases. The person appointed acts for him; or, in other words, he acts through his deputy. His choice is not confined to any race, sex, age, or color. In the case of Jeffries v. Harrington, 11 Colo. 191, cited in the above case, the Supreme Court of the State of Colorado held that, under a provision of the constitution of said State, which provided that "no person except a qualified elector shall be elected or appointed to any civil or military office in this State," the word "office," as used therein, did not include deputy clerkships of County Courts, and women may hold such deputy clerkships. These authorities seem to stand upon correct legal principle. Our own Supreme Court, in the case of Steusoff v. State, already cited, held that a citizen of the State moving from Harris to Liberty County, within so short a time before the election as not to be a qualified voter at such election in the latter county, still was eligible to election, and could hold the office of tax assessor in Liberty County. In discussing the question the court quotes with approval from Barker v. People, 3 Cow., 703, as follows: "Eligibility to office is not declared as a right or principle by any express terms of the constitution [of New York], but it rests as a just deduction from the express powers and provisions of the system. The basis of the principle is the absolute liberty of the electors and the appointing authorities to choose and appoint any person who is not made ineligible by the constitution. Eligibility to office, therefore, belongs not exclusively or specially to electors enjoying the right of suffrage. It belongs equally to all persons whomsoever not excluded by the constitution." Our Supreme Court then proceeds to dispose of the question in the following language: "When a constitution has been framed which contains no provision defining in terms who shall be eligible to office, there is strength in the argument that the intention was to confide the selection to the untrammeled will of the electors. Experience teaches its that in popular elections those only are elected who are in sympathy with the people, both in thought and aspirations; and that no law is needed to secure the election of those only who reside in the county or district in which their functions are to be performed. The constitution of 1869 contained the provision that no person shall be eligible to any office, State, county, or municipal, who is not a registered voter in the State.' Article 3, § 14. The omission of a similar article in our present constitution is not without significance."

It is to be observed, as before stated, that neither our Constitution nor laws on the subject, prescribe any qualification such as would render a minor ineligible or disqualified from holding the office of Deputy County Clerk. As to the clerk himself, there might be some question, as he is required to execute a bond, which might involve the capacity to so contract, but there is no such requirement as to Deputy County Clerks. The authorities cited establish the doctrine, that if the duties of Deputy County Clerk, under the provisions of our statute, are ministerial, a minor can receive the appointment, and execute the duties required of said deputy. The duties of County Clerks in our State are regulated by statute, and they appear to be purely ministerial; and, in addition to their other functions, as has been seen, they have the general power to administer all oaths and affirmations, and to take affidavits and depositions to be used, as provided by law, in any of the courts. Sayles' Civ. Stat., Art. 1149. Deputies are authorized to act in the name of their principal, and to do and perform in such official acts as may be legally done and performed by such clerk in person. By virtue of his office, the County Clerk is empowered to administer oaths and affidavits generally. This power appertains to his office, and belongs to his official duties, and his deputy, in this regard, has such power and authority as he can exercise; and, in our opinion, the appointment of O.L. Bishop, by the Clerk of the County Court of Johnson County, as his deputy, was a legal and valid appointment. Appellant, however, contends that the act of said deputy in granting the license in this case, was a judicial act, inasmuch as said deputy, if authorized to issue a license for his principal, was thereby authorized to inquire as to the status of the parties desiring to procure a marriage license; that is, whether they were eligible and authorized by law to intermarry. We do not think that his functions in this regard were any more judicial than the registration and recording of a deed, for in such case he would have to pass upon the legality of the acknowledgment, to ascertain and determine whether or not the acknowledgment was such as authorized a registration of the deed. The act itself is only one requiring the exercise of such skill and diligence as appertains to a ministerial office, and we think it clearly comes within the definition given in Rains v. Simpson, 50 Tex. 501, cited by counsel. In our opinion, O.L. Bishop, the officer before whom appellant made the affidavit in question, was authorized to administer the same as the Deputy County Clerk of Johnson County. Said affidavit was regular in form, and was voluntarily made by the appellant, and the evidence abundantly shows that the same was false, and that he knew it was false when he made it. There being no error in the record, the judgment and sentence of the lower court is affirmed.

Affirmed.