Conviction for false swearing; punishment, two years in the penitentiary.
Appellant made and swore to an affidavit in which he stated, upon oath, that he owned certain quantities of oil in barrels in Rusk and Gregg Counties, Texas, which affidavit is copied in the indictment, upon which no attack is made. We do not set out the facts since no motion for new trial was made, and no complaint appears of any insufficiency in testimony.
Appellant has five bills of exception, but does not favor us with a brief. Bill No. 1 was taken to the court's refusal of an instructed verdict sought because of the claim that the indictment charged false swearing but the proof showed perjury. In the absence of a brief we have no means of knowing upon what theory appellant bases this contention. We observe nothing in the record showing that the affidavit made by appellant was made under circumstances in which the oath or affirmation was required by law, or was necessary for the prosecution of a private right, or for the ends of public justice, as must appear true in perjury cases under Art. 302, P. C. The best we can get out of this record is that this affidavit was made in an effort to comply with some rule of the Railroad Commission of Texas.
The fact that copies of these affidavits alleged to have been falsely made by appellant, were afterwards used in some judicial proceeding such as an effort to obtain an injunction, standing alone would not affect the fact that the making of same was false swearing and not perjury, — and an admission of the fact that said affidavits were so used would not establish a variance between the allegation and the proof. This complaint appears in bill of exceptions No. 2.
Bill No. 3 sets up no facts from which we might know whether the complaint therein set forth was correct. The indictment was not subject to appellant's motion to quash, and bill of exceptions No. 4, complaining of the overruling of appellant's motion to that effect, shows no error.
Appellant's last bill of exceptions complains of the admission of testimony which is so loosely set out and referred to in the bill as that we are not able to pass on same or to understand just what the complaint is.
Finding no error in the record, the judgment is affirmed.
Affirmed. *Page 228
ON MOTION FOR REHEARING.