*1 Pоllard, person by acts of of said act and or some other reason driving negligence, operating ve- and and said motor while carelessly, aforesaid, thereby then and there and as did hicle negligently unlawfully, operate motor ve- and drive and ** * riding, girl against was automobile hicle” caused her death. and thus pleadings by appellant the way of the State
It is contended appellant particularized what manner should have negligent vehicle, being homicide. a ease of motor this drove his case, reasoning validity of in the Hernandez He admits original prosecution quoted opinion, in so far as would, lie, one is aggravated prоsecuted that when but contends assault C., quoted portion P. latter of Art. as under the original applies. pleading opinion, then different rule of in the In other words, aggravated complaint for an assault there- in a nеcessary plead explicitly is not the acts relied under it however, negligence; so, injuries inflicted when the thus not with such a doctrine. in death. are not accord resulted We Again, pleadings herein we think that the Statе intelligible complained of plain words the do set forth guide negligence, appellant motor that is that failed his act ordinary away Dorothy Lee Pollard as man of vehicle from negligently done, carelеssly prudence and did would have girl against in which the an automobile drive his motor vehicle riding, her are unable see and thus caused death. We allegation necessary made the State. to be what further negligence clearly particularized the acts of Such seems to have enough negligently appellant into a con- drove car to show that allegations girl thereby taining her. think the killed We degree. charge negligent the first properly homicide in motion, and no reason to recede from in this no merit We see original opinion. The motion will expressed in the views overruled. therefore be Vaughn v. The State.
Joe 15, 1943. 22661. Delivered December No. January 26, Rehearing Denied *2 states the case. Abilene, Martin, appellant.. E. W.
Spurgeon Bell, E. Attorney, Austin, State’s for the State. Judge. DAVIDSON, Unlawfully possessing whisky purpose for the of sale in a
dry offense; area is the punishment, a fine of $100.00. found,
By warrant, of a search оfficers residence, whisky author- a sufficient amount of jury’s purpose possessed ize the of sale. conclusion that for the question presented The sole that one of review is affiants to the which the search warrant Appellant issued did not swear thereto. contends such following facts, excep- manifested tion set forth in the bill of presenting viz., question:
Moreland, sheriff, alleged affiants, one of testified follows:
“That he and thе other officer whose name is warrant, (same being signed by Affidavit for search witness other, only, regular and one and which affidavit was and suf- *3 form) prepared affidavit, on its ficient face as to had said and warrant, toоk same to the Justice of the Peace who issued the that, out; and showed same to the Justice of the Peace as filled of the Justice Peace asked the witness if the facts set forth replied in said affidavit wеre true and the witness that such knowledge belief; facts were true to the of his best and that the sign affidavit, Justice of Peace then told the witness to sign whereupon same, did witness and that the Justice of signature jurat affidavit; then the Peace affixed his to the to the testified; “That the witness further up my T did not hold anything; hand and swear administer The Justice of the Peace did not any say anything oath to me. I did not like T swear true, help is so me Cod’. word swear was not used at any by anybody. time All I him said to was—-he asked me if it true, my knowledge and I said it was to the best of and However, my understanding taking belief.’ that I was an oath.” facts, appear: (a) these is made to Under that the wit- prepared the affidavit and
ness himself knew the contents there- of; (b) that he asserted to the that the facts true; (c) affidavit were set forth in the signed by that the affidavit was presence the witness in the peace, thereto; to swear him (d) that, was authorized who at the affidavit, he time the witness understood that he was under oath. warrant the conclusion facts that such
Do affidavit was by the witness? sworn prescribes of oath no form Our of Procedure Cоde Criminal attesting, witness,
necessary
or one
be administered to
oath,
therefore
any
proceeding.
fact
in
criminal
We
under
generally accepted
An
is
rules
law.
oath
look to the
of
signifies
he is
persоn
bound
form of
which a
attestation
faithfully
truthfully. The
perform
an
conscience to
act
that an affidavit
an affidavit and an
difference between
oath
truth,
fact,
is sworn
consists of
statement of
pledge.
It follows that of the trial court should be *4 affirmed. It is so ordered. foregoing opinion The of Appeals Commission has Judges by examined the
been of the Court of Aрpeals Criminal approved by the Court. rehearing.
ON APPELLANT’S motion for BEAUCHAMP, Judge. Appellant’s rehearing motion for the attacks definition of
an affidavit and that no observes Texas cases have been cited. A further examination of the authorities has convinced the writer that Texas cases which would in subject aid gen- the are erally upon text based books the decisions of Supreme the States, of the United States and Court other in precisely the 590 departure way original opinion in It is no the this casé.
same by go reached to to the source the conclusions for this court courts. and also of other former decisions this court Scott, by аppellant 123 Ex Part the cases cited is One of (2d) opinion by Critz Mr. Justice 306. This is S. W. it, is an re Supreme quote: oath From we “An affidavit Court. - writing who to some officer duced to and sworn or affirmed before Among authority the authorities has lawful to administer it.” 434, 67; Jur., p. par. upon relied are 12 Amer. J., 57, par. 81, 64, par. 89; p. p. Am. also Dec. 13 C. Furthermore, find case the writer has been unable case, treating question the at in the instant Texas exact issue great cases further than to an affidavit. Of number of define the by appellant, In question here decided. cited none touch State, 576, person who Rives v. was held that S. W. loan, application Land Bank to the Federal blank, signed it in had was not at the time he made out made no affidavit substituted thereafter. facts Proc., p. upon Ency. 4. The state of Law & Vol. relied parol writing, not in “and the instrument ment made was * * * by after the were made. was not verified insеrtions admittedly complete not when the oath was made and It was agreement any purpose parol not intended to serve until into effect.” It will seen make additions thereto was carried be question there decided was not that case. instant State, (2d)
Moore v. 15 W. 617: It was shown one S. appear witnesses did not even signed it, together peace. with another officer who He took it peace, and the is to the сonclusion based witness, “I, myself, Judge never statement went before Pace.”' State, Foster
Another case cited brief 600. The affidavit for a 282 S. W. search warrant for a surrounding private residence. The facts the exеcution of the opinion, not from are discussed but affidavit Judge record concluded, “The Lattimore affidavit on which the search *5 instant based in the case revealed that was warrant * * by only person, Apparеntly one there sworn was no making affidavit, question the manner of the about as in the instant case. in this
Armstrong State, question 604: The v. 298 S. W. quote, follows: which we the facts case was decided affidavit “Ferguson not swear to the that he did testified evidence issued and executed. No the warrant was before pre- given Shockley Shipman. the record by As either or Ferguson sented, it seems conclusive .uncontradicted issued or warrant was the affidavit before the did not swear to executed.” distinguish question required there
No comment is decided from the one now before us. entirely State, (2d) 984, dif- deals with an
Pate v. 83 S. W. Armstrong cases, supra, question. were ferent and Moore distinguished. necessary to do here. discussed and It is not Marsden, al, Troy, by ap- et 189 S. is also cited W. it, pellant. quote (p. 964) From we : printed
“An ‘affidavit’ is a written or declaration of facts by oath, writing, pledge, an confirmed while аn oath is a not in made in of verification statements made or to be made. In other words, writing.” an affidavit is an oath reduced to defining This is Texas case with much language original opinion. same as that found in the Still deciding quеstion short falls favor question appearance instant case. The remains: Did his before justice peace did, requirements of the meet the of law? If it properly not, objection the search warrant was issued. If to it should have been sustained. conclusive, foregoing authorities,
It is af- from the that an fidavit made must be before officer authorized to take may private same dence, warrant If resi- search issue. it is pаrt purpose, persons not used in for some other two Nothing may required must make the affidavit law. further them, opinions, concluded from such favorable to be appellant they at treat case bar. Neither do sufficiency apperance as to the of the witness Moreland peace justice and of the acts of the before the compliance peace to constitute with the law. The two aрpear peace; they witnesses did before the knew instrument; they affidavit; the contents of the justice signature; affixed his the word “swear” not used. The witness said: *6 I said true and me if it was “All I said to him was—he asked However, knowledgе my and belief. was to best of understanding taking my I an oath.” that was prevail. understanding parties must
The mutual Enough here- If. the has not to evidence that. court no Texas case it and if there be tofore had the very logicаl opin- conclusion reached original submission, will serve as such. ion on hereafter rehearing Appellant’s motion for is overruled. Virges v. The State.
Joe No. 22682. Delivered December 1943. January 26, Rehearing Denied states case. Hay, Houston, Baggett, appellant. Kirk & Spurgeon Bell, Attorney, Austin, E. for the State. State’s KRUEGER, Judge.