96 S.W. 47 | Tex. Crim. App. | 1906
Lead Opinion
Conviction of perjury. The evidence shows that the imputed perjury was committed before the county attorney. The officers made a raid upon the residence of Frazier, under the idea that gambling was there being carried on. Among others, appellant was found in the house. About midnight he and others were carried to the courthouse, the county attorney was brought, and proceeded to swear appellant and ask him some questions. The indictment alleges that appellant stated, when asked by the county attorney, that he had not seen certain parties play at a game of cards on which money was bet. It may be seriously questioned if this indictment is sufficiently specific to charge the offense of gambling at a private *270 residence. Without discussing that question, in our judgment the county attorney had no authority to administer the oath and proceed to the investigation as a court of inquiry as shown by this record. Articles 34 and 35, Code Criminal Procedure, authorize the county attorney to take the affidavit of a complaining witness charging an offense, which shall be returned to the proper court after being reduced to writing and sworn to by the complainant. Article 36, Code Criminal Procedure, authorizes the county attorney for this purpose to administer oaths. So far as we have been able to ascertain from the statutes this is the extent of the authority of that officer to administer oaths. Article 941, Code Criminal Procedure, authorizes the magistrate, whenever he has reason to believe or knows that an offense has been committed to summon witnesses or cause them to be summoned, place them under oath and investigate the matter, and if an offense has been committed, take necessary steps to have the parties prosecuted. But the limitation of the authority in Texas to hold courts of inquiry is relegated to the judicial department; magistrates and justices, except grand juries. While in gambling transactions the statute seems to authorize the county or district attorney to subpœna persons toward the enforcement of the gambling law, the statutory authority in regard to this matter stops at that point. It does not authorize him to swear witnesses, and the language is so indefinite it is a very serious question as to what is the extent of the power, if any in fact has been conferred by this particular statute upon such officer. Be this as it may, it seems that, under our procedure a limitation is placed upon the authority of the county or district attorney to administer oaths, except as provided in articles 34 and 34 and 36, Code Criminal Procedure. This being true, the statements of the appellant made before the county attorney here were not under such an oath as is authorized by law; that is, not in such judicial proceeding as mentioned in the statute; they were not in a tribunal authorized to administer oaths or to take his testimony. Appellant made a motion to quash as well as in arrest of judgment which should have been sustained.
There are some other questions in the case which would require a reversal, but under the view we take of the legal status of the matter, there is no offense charged, and a discussion of the other matters is not indulged.
For the reasons indicated the judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.
Brooks, Judge, absent.
Addendum
At a former day of this term the judgment herein was reversed and the prosecution ordered dismissed. This opinion is in conflict with that in Bailey v. State, *271
Overruled.
Brooks, Judge, absent.