State v. Oppenheimer

41 Tex. 82 | Tex. | 1874

Devine, Associate Justice.

The defendant was indicted for having committed the crime of perjury, and, on motion of defendant, the court quashed the indictment.

The District Attorney appealed from the judgment of the court, and the question presented for our consideration is the sufficiency of the indictment. • The motion of defendant set forth that “ the indictment charged no offense known to the law, and is altogether too vague and indefinite to sustain a verdict.”

The indictment should have stated that the oath was taken and the matter sworn to in some judicial proceeding. (3 Arch. Cr. Prac, and Plead, 593.) And it should state where and when such judicial proceeding was pending. The indictment, tested by these requirements, is wholly defective. It omits to state the name of the judge, court, or officer before whom the trial was had when the alleged perjury was committed. It omits the statement whether it was during an examination or on a trial under indictment that the accused committed the offense charged. It is true, the indictment charges that the said Oppenheimer then and there was duly and legally sworn by John It. Landford, deputy district clerk of Jackson county, &e. From this one might infer that the proceeding in which the alleged perjury was committed was -in a proceeding had in the District Court of Jackson county, but inferences are not to be. indulged in to supply the palpable omissions in the charge or description of the offense. It must appear upon the face of the indictment that the oath was taken and the matter sworn to in some judicial proceeding. (3 Whart. Cr. Law, 2221.) “And the indictment must show that such judicial proceeding was pending in the court at the time the oath was taken and the false statement made. (3 Arch., 593.) The jurisdiction of the court must be expressly averred. (3 Whart. Cr. Law, art. 2236.) The objection to this indictment is, that it fails to set out that the suit wherein the accused is charged to have committed perjury was in any court having jurisdiction of the offense. The motion to quash was properly sustained.

There being no error, the judgment of the court is

Affirmed.