This is a charge of false swearing for obtaining marriage license. The document described in the indictment, upon which the marriage license issued, and to which appellant is said to have sworn, is in the following language: *Page 302
"The State of Texas County of Erath.
I, N.W. Porter, do solemnly swear that I am twenty-one years old, and that Miss Nora Richardson is not eighteen years of age, and that there are no legal objections to our marriage, and that the order hereto attached, signed A.J. Richardson, is genuine written signed by him in my presence that he is the father of Miss Nora Richardson.
(Signed) N.W. Porter.
Subscribed and sworn to before me this 22nd day of Aug., 1904.
Jno. W. Frey, Clerk County Court Erath County. By Geo. P. Knight, Deputy."
That the order referred to in said affidavit is genuine was attached to said affidavit, and is as follows: "Mr. Clerk. Please issue license for our daughter aged sixteen. A.J. Richardson."
The first bill of exceptions was reserved to the failure of the court to give the following instruction: "You are instructed, gentlemen of the jury, that the defendant pleads an affirmative defense, that is, a mistake of fact; that at the time he made the affidavit in question, if any, he did not know it contained the matters and things in reference to the order, if any, and did not know said affidavit, if any, contained any statements in reference to objections to the contemplated marriage, if any. Therefore, if you find and believe from the evidence, if any, that defendant did make said alleged false statement, and the same was false, but if you further find that defendant did not know the contents of said statement, if any, or if you have a reasonable doubt as to whether or not defendant knew the contents of the same, you will acquit the defendant." We believe this charge should have been given. The facts in this connection show by the witness Will Porter, that he was present when defendant secured the marriage license about which the affidavit was made; that Mr. Knight had, in substance, the following conversation with defendant: "Knight asked defendant what he wanted. Defendant replied he wanted a marriage license. Knight then asked him, `Who for?' He said, `Myself and Nora Richardson.' He then asked him how old he and the girl were. Defendant told him he was 21 and that she was not 18. Defendant then handed the clerk the order. The clerk then asked if he would swear that he was 21 and the girl was under 18, and defendant replied that he would. The clerk then asked, if he saw the order signed, and he said he did. The clerk did not have defendant hold up his hands and swear him at all; that the clerk did not ask defendant if old man Richardson signed it, or that he saw Mr. Richardson sign it." Defendant testified to the same state of facts. Both defendant and witness Will Porter further testified that the affidavit was not read over to defendant at the time he signed it. This charge is largely hinged upon the language used by the parties during the conversation just preceding the issuance of the license and the alleged execution or signing of the affidavit. If the *Page 303 conversation occurred as detailed by defendant and his witness Porter, and such was his understanding at the time, it suggested a mistake of fact so far as the defendant was concerned. The affidavit has him in the attitude of swearing that he saw A.J. Richardson sign the order, when under these facts the clerk asked no such question, and it was not a matter of investigation at the time of the issuance of the license under appellant's theory. Everything detailed by the two witnesses could have been literally true in regard to his seeing the order signed and he could have sworn to it without being guilty of false swearing. This was a very important issue under his theory. He in fact did see Miss Nora Richardson sign the order, and if that was the extent of the information which he conveyed to the clerk in answer to inquiries, and the clerk inserted the contents of the affidavit, and appellant was not aware of it, and signed it without its being read over to him, he was entitled to this charge, and under that phase of the case would have been entitled to an acquittal.
The judgment is reversed and the cause remanded.
Reversed and remanded.
ON REHEARING. June 21, 1905.