Rives v. State

From Art. 23, Sec. 18, R. S., 1925, we take the following:

"Affidavit means a statement in writing of a fact or facts signed by the party making it, and sworn to before some officer authorized to administer oaths, and officially certified to by such officer under his seal of office."

The prosecution is based upon averments that the appellant made an affidavit as a basis for borrowing money upon his real estate which the lender required to be in writing, for which there was a printed form with blanks to be filled in writing, prepared and furnished him; that part of the blanks were filled and the document signed, but the description of the land which he desired to mortgage was not embraced in the writing. It was shown that it was contemplated that the document might be subsequently completed by embracing in it a description of the land which he desired to mortgage. It is manifest from the printed document and from the surrounding facts that the writing was not complete within the contemplation of the parties at the time the oath was made.

It is the opinion of the writer that the affidavit defined in the statute is a written document, signed by the affiant and sworn to before an officer authorized by law to administer oaths, he attaching his jurat and seal thereto, and that the instrument in question was not within the definition of an affidavit as contained in the statute and contemplated in Art. 310, P. C., 1925, defining the offense with which the appellant was charged. The view entertained is confirmed by such precedents as are at hand. See Morris v. State, 2 Tex.Crim. App. 502; Shelton v. Berry, 19 Tex. Rep. 154; Anderson v. Cochran, 93 Tex. Rep. 583; State v. Headrick, 51 S.W. 99, 149 Mo. 396; Flint et al. v. Brown et al., 1 White Wilson Civil Cases, Sec. 1018.

"An affidavit is defined by Blackstone to be 'a voluntary oath, before some judge or officer of the court, to evince the truth of certain facts.' 8 Bl. Com. 304. In practice it means an oath or affirmation reduced to writing, sworn or affirmed before some officer who has authority to administer it. Bouv. L. Dict., title Affidavit; Burrill and Tomlinson, same title. 'It must be in writing * * *. It is sufficient that it be made before an officer authorized by law to administer it, and that he reduce it to writing, and certify officially to the fact of its having been made before him'." (Morris v. State, 2 Tex.Crim. App. 503.)

See also State v. Richardson, 34 Minn. 115, 24 N.W. 354; Garrard v. Hitsman, 16 N.J.L. 124; Alford v. McCormac,90 N.C. 151; Windley v. Bradway, 77 N.C. 333; Kessler v. Hoffman, 9 Pa. Dist. 365; State v. Williams, 76 S.C. 135; Blyth, etc. Co. v. Swenson, 7 Wyo. 303; Corpus Juris, Vol. 2, p. 338, note 89; 1 Amer. Eng. Ency. of Plead. Prac., p. 309; Amer. Eng. Ency. of Law, 2nd Ed., p. 909. From one of the cases we quote:

"Again, the plaintiff says that there might have been an unwritten affidavit which warranted the aforesaid recitals. If that were so, still, an unwritten affidavit would not support the attachment; or rather it is more proper to say, that there is no such thing as an unwritten affidavit." (Windley v. Bradway, 77 N.C. 333.)

For the reasons stated, the state's motion for rehearing is overruled.

Overruled.