Opinion
No. 2381.
Decided October 30, 1901.
Perjury — Affidavit Before County Attorney.
An affidavit made before the county attorney in a prosecution for a misdemeanor can be used as the proper basis upon which to predicate a charge of perjury.
Appeal from the District Court of Ellis. Tried below before Hon. J.E. Dillard.
Appeal from a conviction of perjury; penalty, two years imprisonment in the penitentiary.
No statement of facts in the record.
No brief on file for appellant.
Rob't A. John, Assistant Attorney-General for the State.
Appellant was convicted of perjury, and his punishment assessed at two years confinement in the penitentiary; hence this appeal.
It is assigned as error that the written instrument, which was a complaint made by appellant charging an aggravated assault to have been committed by one W.C. Mitchell upon Ada Mitchell, in proper form, made before Lee Hawkins, county attorney of Ellis County, could not be made the predicate of perjury. An affidavit of this character is authorized by law to be taken by county attorneys in the prosecution of misdemeanors. Articles 34, 35, Code Crim. Proc.; Thomas v. State, 37 Tex.Crim. Rep.. Such an affidavit is the beginning of a judicial procedure, and the oath is required by law as the basis for the prosecution. Such oath so taken comes within our statute defining perjury (article 203, Penal Code). Langford v. State, 9 Texas Crim. App., 283. This is not like the case of Davidson v. State, 22 Texas Criminal Appeals, 373. In that case the affidavit was simply a voluntary affidavit in order to procure a marriage license, and was not in the course of any judicial proceeding. We have examined the indictment, and, in our opinion, it sufficiently charges the offense. The charge of the court is pertinent to a state of facts provable thereunder. The record contains no statement of facts.
There being no error in the record, the judgment is affirmed.
Affirmed.