*1 a shown then, appellant have certificate, could such Under warrant, search complaint and the variance between residence sought sеarch the complaint warrant search complaint upon issued person the warrant one while of another. of the residence the searсh authorized warrant. validity the search to the is fatal variance Such complaint stated name of the The Rep. State, correspond. 145 Texas Cr. Lоven v. must warrant 515. 2d. to show permitted have trial court should The respect mentioned. invalidity search warrant remanded. judgment reversed and cause is The Lowry Leslie v. State 28,532. 28, 1956. No. November January Rehearing 1957. Motion for Overruled State’s Goodwin, Beaumont, appellant. Baldwin & for Wilson, Attorney General, Will Robert Smith, Assistant General, Proctor, Attorney Les Attorney, District Francis J. Attorney, Shepperd, Jr., District Ben Maloney, John Assistant Attorney, General, Attorney Douglas, and Leon State’s former Austin, thе state. all
Byron Lockhart, Austin, amicus curiae. Judge.
WOODLEY, punishment, years. perjury; The offense seven Appellant and others executed a charter of Fire The Texas 11, July Company Insurance dated attached thereto and the document in the indictment fol- described which reads as : lows
“AFFIDAVIT AS TO CAPITAL
of the FIRE TEXAS INSURANCE COMPANY
BEAUMONT, TEXAS
“THE ) STATE OF TEXAS )
“COUNTY OF JEFFERSON me, undersigned “Before authority, day person- on this ally appeared O’Fiel, D. H. Lowry Paul and Lowry Leslie all being me, duly known to who sworn, upon after oath, each for deposes says: himself and they parties
“That are the identical who executed the Char- ter Company; of the Texas Fire Insurance the full amount stock, capital to-wit, One Hundred Thousand and no/100 $100,000.00) Dollars, surplus аnd a Fifty Thousand and Dollars, ($50,000.00) good has been faith no/100 subscribed paid cash; $150,000.00 such sum of paid in is now deposit Security State Bank and Company Trust at Beaumont, Texаs, and is the bona fide property of the said Company. Fire Insurance Leslie Lowry
“/s/ Paul Lowry R. “/s/ S. D. O’Fiel “/s/ AND “SUBSCRIBED SWORN TO ME, BEFORE on this my certify July, day which witness A.D. the 11th hand and of office. seal B.S.
“/s/ “Notаry and for Public County, Texas” Jefferson “(SEAL) required theory,. Art. the state’s affidavit Under County existed, in Travis as it then 4702 R.C.S. venue said affidavit in of the use of under Art. virtue 189 C.C.P.
county. pass upon contention we are called At outset *3 that the statement thаt the evidence is insufficient establish alleged required under the circumstances to be false was made alleged by perjury statutes, indictment. as in the and perjury, affirma- the oath or constitute the offense of To by required Art. law. tion in the manner must be administered 304 P.C. requires be made that Art. 302 P.C. the false statement *“* * oath, is is affirmаtion under the sanction an or such as of by equivalent oath, or affirmation to an where such oath law
legally administered.” alleged The indictment under statutes and was drawn these “* by appellant that the statement made and subscribed was * * legally by an under the sanction of oath administered to him County, Lusby, Notary Texas.” B. Publiс for Jefferson S. any appeared witness testified that at time No Lusby, notary Notary B. that adminis- Public S. or said legal appellant, an oath to otherwise. tered or signature appellant’s were called who identified Witnesses signature Lusby, instrument, and the it B. and S. notary public that was a in and was shown for Jefferson County. upon testimony, It is and the itself, instrument in- cluding jurat, that the state relied to establish the that fact legally appellant by Lusby, administered an oath was and
181 assigned perjury made under- as the statement of an oath. sanction cited are precedent decisions of this court in the No held jurat has been none wherein the offiсer’s
we know of appears above person whose name that the sufficient to establish an it sanction of made under it the maker the statement lеgally oath administered. 1048, State, case, cites 256 P. The state an Arizona Lewis v. dealing opinion court was in that case reveals that
but with presumptive an evidence Arizona statute which made jurat. an affiant statements of because officer’s state, comparable statute in this and the cases No еxists by appear contrary decided this court doctrine. to announce a State, Rep. In Adams v. 49 Texas it Cr. was held that the oath taken what sworn be cоuld testimony witness, established of one that of the officer being who administered the oath sufficient. particular administering
No form an oath such as is set law, howеver, us out in our statute. It is settled oath, to constitute a falsity valid for the of which lie, be, will there must of a authorized it, to administer act which affiant takes State, оf an oath. Weadock v. Rep. 537, 118 757; Vaughn State, Cr. 2d S.W. *4 Rep. 586,
Texas Cr. 177 S.W. 2d agree are unable to We that the jurat, proof officer’s with signatures authority the of officer to administer an oath, is appellant sufficient evidence to establish that appeared notary the and in his did an act which he took of an oath. State, supra,
In Weadock the rule above mentioned was it testimony stated and was held that the of the notary was a sufficient show that valid to oath was administered the to supporting against affiant to an affidavit an account an estate. Judge Morrow, speaking court, for this rehearing, said: “It adequate that thеre be was essential evidence appellant that affidavit.” swore to the Lusby an
Notary employee, B. Public S. personal close appellant, called and was friend and business associate appel- not swear testify testified that he did in his He behalf. state- any with the oath to him in connection lant or administer ment. prove finding state failed to In of our view legally
appellant administered, statement under sanction of oath made the Lusby’s testi- pass upon effect of need not we mony. judgment remanded. is reversed and cause
The STATE’S FOR REHEARING
ON MOTION Presiding Judge. MORRISON, they scholarly has us in which
The state favored with brief re- jurisdictions, as citе a of authorities from other number argued for re- quested the state its motion writer when hearing. main, rely upon
In these cases a statement found in 2 follows: C.J.S. prima therein. jurat is
“The facie evidence matters stated evidence, prove however, is course admissible to Extrinsic that such are in fact false.” statеments difficulty
The has encountered from the which this court original phraseology of our submission of case lies (Articles V.A.P.C.), perjury 302 and statutes original opinion. аttention was directed in our which require and effect of such statutes The force is to prove prosecutions in all in this state that state under statement was made the sanction of an oath the false legally had administered. which been It must be mind that there an entire borne absence of showing ap- any in the record before us that the ever signed peared at the time he instrument question. *5 quote Flatonia, from v. First National Bank Sullivan
We 421, as follows: therefore, think, requires the law the affiant to be “We oath; to administering not personal presence the of the officer repre- may person the he officer him to the end the know be be, be required the affiant for it is not sents himself officer, identified, introduced, personally to the or or be known certainly person who the end that he identified the but to be acсording the actually took the Oaths and affirmations oath. governing authorizing the are taken statute them officer authorized them.” to administer O’Reilly Peoplе, which
This case cites N.Y. from quote we as follows: falsity make a valid oath for will
“To of which lie, form, presence there be in must some officer of an it, present act, authorized to administer which the affiant takes delivery signed
of an oath. The case of the affidavit to act, officer not such an and suрposition not made so party intention of the one or of the other.” Though great latitude proving has allowed in exe- been oath, cution of an we find that the authorities from this and states, other which we consider to be based sounder reason- ing, require affiant ad- ministering the oath. rehearing The state’s motion for overruled.
Garvin Alexander Malone v. State 28,593. No. November
Appellant’s Rehearing Motion for Overruled. January 23, 1957