Shely v. State , 35 Tex. Crim. 190 ( 1895 )

Appellant in this case was convicted of perjury, and his punishment assessed at five years' confinement in the State penitentiary. From the judgment and sentence of the lower court, he prosecutes this appeal. The prosecution in this case was predicated on an affidavit made by appellant, as deputy sheriff, to an account for conveying a witness from Nueces to Live Oak County. It is contended by appellant that such affidavit to a sheriff's fee bill cannot be made by a deputy sheriff, so as to constitute it the predicate for an indictment for perjury. Our statutes on the subject provide for the appointment by a sheriff of one or more deputies, and such deputies are authorized to perform all acts and duties required of their principals. Sayles' Civ. Stat., Art. 4520, et seq. The act of 1891 (see Acts 22nd Leg., pp. 138, 139), authorizes the sheriff to receive costs for conveying attached witnesses from one county to another, and Subdivision 8, Art. 1054, Code Crim. Proc., provides the mode by which he can receive from the State his fees or costs for conveying such witness. A deputy sheriff would have the same right to execute process of attachment for such witnesses as would his principal, and, in out opinion, would be authorized to make the affidavit required in said subdivision 8, before he or his principal could receive the fees due therefor. Nor was it necessary that the State should have made proof of the fact that appellant was deputy sheriff, by introducing his formal appointment as such. He was acting as such deputy, and this issue was a collateral one, and the proof of his official capacity could be made by parol. Woodson v. State, 24 Tex.Crim. App., 153. The pleader in this indictment evidently attempted to charge the perjury in this case as having been committed in the course of a judicial proceeding. As stated before, the affidavit upon which the perjury is predicated, was made by appellant to his fee bill for conveying a witness from Nueces to Live Oak County. Said affidavit was made in a case wherein the State of Texas was plaintiff, and one B.B. Wright was defendant, who was charged in the District Court of Live Oak County with theft of cattle. The affidavit, it appears, was made after the disposition of said case. While it is true, in one sense, that the affidavit was made in the course of a judicial proceeding, yet, as to the perjury, we do not believe the affidavit was made in the course of such proceeding. It was an affidavit made as an incident to said proceeding, not necessarily in the proceeding itself, but merely to enable the officer to obtain his fees for conveying the attached witness in said case; and the affidavit, as a predicate for perjury, comes under another subdivision of our statute defining perjury, to-wit: an oath or affidavit necessary for the prosecution or defense of a private right. The statute with reference to sheriff's fees requires an affidavit to be made before the sheriff will be entitled to receive his fees from the State; so that, while in our opinion, it was necessary for the pleader to have stated so much of a judicial proceeding in order to show the right of the sheriff to receive his fees in the given case, yet, the predicate for the indictment in this case should have been distinctly laid on the collateral affidavit, required by law, to enable the sheriff to obtain his fees. It is true the indictment in this case, after setting out in extenso the judicial proceeding, says that the oath in question was one required by law, but this is not tantamount to saying that it was, under the circumstances in which the oath was required by law, "for the prosecution or defense of a private right;" and moreover, these circumstances, in each particular case, must be shown, and in this case the most material circumstances on which the sheriff was authorized to receive fees in the particular case were not shown, to-wit: that he had process of attachment in said case from the District Court of Live Oak County, directed to Nueces County, authorizing him to attach the witness Milas P. Wright. Without such processs he had no right to attach said witness, and, in the absence of an allegation that such witness had been attached by him, he was not authorized to receive compensation therefor. This allegation the indictment should have contained. Warner v. Fowler, 8 Md.. 25; People v. Fox, 25 Mich. 493; Johnson v. State, 58 Ga. 397.

The statute authorizing the sheriff to receive fees (see subdivision 8, Art. 1054, Code Crim. Proc.) requires the sheriff to make affidavit to his account for conveying an attached witness. The form of the affidavit is prescribed in the law, and is as follows: The sheriff shall make out his account, showing the days actually and necessarily consumed in going to and returning from such court, and his actual necessary expenses, by the nearest practicable route. He shall show the place at which the witness was attached, the distance to the nearest railroad station, and miles actually traveled to reach the court; if horses or vehicles were used, from whom hired, and price paid, and length of time consumed, and amount paid out for feeding horses, and to whom; if meals and lodging were provided, from whom and when, and price paid. Said account shall also show, before said officer shall be entitled to compensation for expenses of attached witnesses, that the witness was called upon by him to give bond, and was offered by him an opportunity to give bond, to appear before the proper court, and was unable or refused to do so; and the officer shall also present to the court the affidavit of the witness to the same effect, or shall show that the witness refused to make the affidavit. To this account stated, the oath required is as follows: That it shall state that said account is proper, just, and correct in every particular. The indictment in this case assumes to set out the oath or affidavit in substance, to-wit: that the said William Shely, a deputy of said Pat Whelan, had performed services for the State of Texas in the aforesaid case against said B.B. Wright, in conveying the witness Milas P. Wright from Nueces to Live Oak County, for which said services the State was indebted to Pat Whelan, etc. Then follows the account stated. No affidavit is copied into the indictment, but, as stated, it was proposed to set this out in substance. This was permissible, but the substance of the affidavit itself must in fact be set forth. 2 Bish. New Crim. Law, p. 1017. This indictment is so drawn that it is a difficult matter to ascertain therefrom what were the things or facts the appellant did swear to. Now, when we look to the affidavit actually made, we find that the appellant did not swear that he had performed services for the State of Texas, but he swore that a certain account was true, just, and correct in every particular, and that the services were performed as therein stated. He does not state who performed the services, as is alleged in the indictment. The indictment does not indicate or foreshadow the real affidavit made by appellant. On the contrary, it indicates quite a different affidavit, to such an extent as would render the affidavit actually made inadmissible in evidence. We are not holding that the indictment must set out in hæc verba the precise words of the affidavit, but we do hold that the indictment must set forth the affidavit substantially. One or the other course must be pursued. The indictment charges that the appellant stated, in writing, that he had performed services for the State in a certain case, naming it. What services are not indicated by that part of the indictment which attempts to give the substance of the affidavit. We are informed of the nature of the services by the account which follows, but this is made no part of the affidavit, or rather the oath taken. The line of demarkation between what the appellant did swear and the allegations of the pleader are not drawn in this indictment. We suggest that if the pleader had set out the account, and then alleged that appellant did before said officer (describing him) falsely, knowingly, wilfully, and corruptly, then and there, swear, depose, and say that said account is proper, just, and correct in every particular, and then have traversed all of such items of said account as were deemed by him false, then he would have had a proper indictment as to this matter. The motion to quash the indictment should have been sustained. The judgment is reversed, and the prosecution dismissed.

Reversed and Prosecution Dismissed.