Parker v. State

Appellant was convicted of perjury, and his punishment assessed at two years confinement in the penitentiary.

The charging part of the indictment is as follows: "The grand jurors for the county of Kimble, State aforesaid, duly organized * * * upon their oaths in said court present that J.H. Parker, who resides in Kimble County, Texas, on the 1st day of January, A.D. one thousand nine hundred (1900), then and there owned and held, subject to taxation in said Kimble County, Texas, by the laws of the State of Texas, on the 1st day of January, A.D. 1900, money on deposit in the bank of Chas. Schreiner in Kerrville, Texas, to the amount of four thousand dollars, and it became a material matter of inquiry before J.B. Browning, deputy tax assessor of Kimble County, Texas, as to what amount of money the said J.H. Parker owned and held subject to taxation in said Kimble County, Texas, on the 1st day of January, A.D. 1900, and the said J.H. Parker did, on the 15th day of March, A.D. 1900, in Kimble County, Texas, present himself before J.B. Browning, Esq., deputy tax assessor of Kimble County, Texas, and was duly and legally sworn, and did take his corporal oath before said J.B. Browning, *Page 150 deputy tax assessor of said Kimble County, Texas, to testify as a deputy tax assessor of said Kimble County, Texas, as aforesaid, which said oath was required by law and was necessary for the ends of public justice, and which said oath was then and there administered to him, the said J.H. Parker, by the said J.B. Browning, deputy tax assessor of Kimble County, Texas, on the date last above written, the said J.B. Browning having sufficient and competent authority under the law to administer said oath to the said J.H. Parker, and after said oath had been administered to the said J.H. Parker, as aforesaid, it then and there became a material matter of inquiry as to the amount of money owned and held by the said J.H. Parker, on the 1st day of January, A.D. 1900, and subject to taxation in Kimble County, Texas, under the laws of this State, and the said J.H. Parker, being duly and legally sworn, as aforesaid, in said Kimble County, Texas, did falsely, willfully and deliberately, before said J.B. Browning, depose and state under his oath, that he, the said J.H. Parker, owned and held only two thousand dollars ($2000) in money subject to taxation in Kimble County, Texas, on January 1, 1900, and that said J.B. Browning, in listing said amount of money owned and held by the said J.H. Parker, subject to taxation in said Kimble County, as aforesaid, listed the same as follows: `Amount of money of bank, banker, broker or stock jobber, 2000,' which was a clerical mistake of the said J.B. Browning, and should have been listed as two thousand dollars, the amount of money owned and held by the said J.H. Parker subject to taxation in Kimble County, Texas, on January 1, 1900, as sworn to by said J.H. Parker. Which said statement as aforesaid was a material matter of inquiry before the said deputy tax assessor for the purpose of ascertaining the amount of taxes due Kimble County, Texas, from the said J.H. Parker for the year 1900. Whereas, in truth and in fact, the said J.H. Parker did not own and hold only ($2000) two thousand dollars in money subject to taxation in Kimble County, Texas, on January first, 1900, but he, the said J.H. Parker, owned and held four thousand dollars in money, subject to taxation in Kimble County, Texas, on January 1, 1900, and the statement so made by the said J.H. Parker, that he owned and held only two thousand dollars in money, subject to taxation in Kimble County, Texas, on January 1, 1900, was willfully and deliberately false, as he, the said J.H. Parker, then and there well knew; against the peace and dignity of the State."

Appellant filed a motion to quash the indictment, among others, on the following grounds: (1) Property to be assessed was situated in Kerr and not in Kimble County. (2) It does not set forth or show the oath alleged to have been administered to defendant. (3) Because it appears from said indictment that no offense against the laws of the State is charged and said indictment does not charge any offense. The motion should have been sustained. Under article 5097, Revised Civil Statutes, assessors are empowered to administer all oaths necessary to obtain a full and complete assessment of all taxable property situated *Page 151 in their respective counties. Article 5098 prescribes the form of oath that each person is required to subscribe and swear to after the rendition of property. Article 5100 provides that the assessor shall forfeit $50, to be deducted from his commissions, if he does not administer the oath or affirmation prescribed in article 5098 to each person rendering and listing all taxable property to him. Article 5103 prescribes that the list shall be made under oath as prescribed in article 5098. And the succeeding article, 5104, says the rendition shall be valid, although the party listing the property does not make the affidavit. A casual inspection of these articles discloses that it is the imperative duty, under penalty of a fine, for the assessor not to administer the oath as contained in article 5098, after the property has been rendered, according to the other provisions of the law on taxation. An inspection of the indictment shows that the same attempts to predicate perjury upon the provisions and conditions of article 5098; and in order to do so, the indictment should so allege, setting out the oath prescribed by said article, and the evidence should establish the allegations of the indictment. The evidence shows that no attempt was made to administer to appellant this oath at all after all the property had been listed; and aside from the allegations in the indictment which evidence the fact that article 5098 was attempted to be complied with, the evidence also shows that said article alone was attempted to be complied with. But, as contended by appellant, the assessor has no right to require the rendition of property not located and situated in the county where the assessment is attempted. This is a clear provision of article 5097, supra. It is further provided by article 5068 as follows: "All property, real and personal, except such as is required to be listed and assessed otherwise shall be listed and assessed in the county where it is situated." The indictment charges that the rendition was made in Kimble County of property, to wit, $2000, located in a bank in Kerr County. The perjury being predicated upon the proposition that appellant had in said bank in Kerr County $4000, and that he swore falsely in stating in his rendition that he only had $2000. The assessor of Kimble County had no right to assess appellant for taxes due or that might be due in Kerr County. The Acts of the Twenty-fifth Legislature, chapter 142, amends articles 5068, 5076, 5098 and 5130 of Revised Civil Statutes, but in no respect changes the place where said property is to be rendered. Furthermore, as contended by appellant, the indictment should allege that the money rendered was in said bank, payable on demand, as required by article 5064. The conclusion, therefore, to be deduced is, that the indictment in this case charges no offense. The judgment is reversed and the prosecution ordered dismissed.

Reversed and prosecution dismissed.