
    GRAY v. STATE.
    (No. 11591.)
    Court of Criminal Appeals of Texas.
    April 18, 1928.
    1. Witnesses <⅞=>227 — Statute held to confer authority on district clerks to administer oaths to witnesses in judicial proceedings (Rev. St. 1925, art. 26, subd. I, and art. 3927).
    ' Rev. St. 1925, art. 26, subd. 1, authorizing clerks of any court of record to administer oaths, construed together with article 3927-, authorizing district clerk to charge fee for swearing witness, held to confer authority on district clerks to administer oaths to witnesses in judicial proceedings.
    2. Clerks of courts Deputy clerk may perform any official ministerial act that may be done by his principal except appointment of deputy.
    Deputy clerk is authorized to perform any official ministerial act that may be done by his principal except to appoint deputy, providing there is no statutory provision or implication to the contrary.
    3. Oath <g=>2 — Administration of oath is ministerial act.
    Administering an path is a ministerial act.
    4. Witnesses <®=>227 — Omission from Revised Statutes of former articles authorizing administration of oath by district clerk and deputies held not to deprive clerks and1 deputies of such power, in view of other provisions (Rev. St. 1925, art. 26, subd. I, and art. 3927; Rev. St. 1911, arts. 1691, 1693).
    Omission from Rev. St. 1925, of articles 1691, 1693, Rev. St. 1911, authorizing district clerks and their deputies to administer oaths, held, not to divest district clerks and their deputies of authority to administer oaths to witnesses in judicial proceedings, in view of Rev. St. 1925, art. 26, subd. 1, and article 3927, which impliedly authorized district clerks and deputies to administer oaths.
    5. Perjury <3=33(5) — Evidence held sufficient to show that defendant, prosecuted for perjury, was sworn by deputy district clerk in civil case.
    In prosecution for perjury, evidence by state witnesses that deputy clerk of district court swore all witnesses who testified on first day of trial in civil ease, and that defendant testified on first day of trial and further evidence that witness heard defendant sworn by deputy district clerk, held sufficient to show that defendant was sworn.
    6. Criminal law <3=1092(14) — Statement of ground of objection in bill of exception is not ■ certificate of judge that facts therein are true. ‘
    Mere statement of ground of objection in • bill of exception is not certificate of judge that facts which form basis of objection are true, but merely shows that objection was made.
    7. Perjury <©=>32(8) — Evidence that train had no swinging doors before leaving city, in connection with evidence of lack of swinging doors after passing accident, held relevant and material in prosecution for perjury by defendant who testified to contrary.
    In prosecution for perjury by defendant testifying in civil suit that plaintiff therein was struck by swinging door on railroad car, evidence that there were no swinging doors on train before leaving city, in connection with evidence that after passing scene of accident there were no loose and swinging doors present, held relevant and material.
    8. Criminal law <3=709) (II) — Bill of exception ' in question and answer form, which form was not shown necessary by certificate of trial judge, held not entitled to consideration.
    Bill of exception in question and answer form and without certificate of judge showing necessity for such form held not entitled to consideration on appeal.
    9. Criminal law <3=1091(8) — Bill of exception to remarks of counsel, some of which were proper, not specifying improper remarks, held insufficient.
    Bill of exception to remarks of counsel, some of which were proper, failing to specify remarks deemed improper, held insufficient on appeal.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.
    H. E. Gray was convicted of perjury, and he appeals.
    Affirmed.
    George H. Oavanagh, of Houston, for appellant.
    A. A. Dawson, State’s Atty., of Austin (Heidingsfelder, Kahn & Branch, of Houston, of counsel), for the State.
   CHRISTIAN, J.

The offense is perjury; the punishment confinement in the penitentiary for two years.

The charge grew out of testimony given by appellant in a civil suit. John Salmon fell under a freight train which was passing through Fayetteville, Tex. His feet were mashed. The mother of the injured party brought suit against the railroad company. Appellant testified on the trial of that suit that he was in Fayetteville on the occasion when young Salmon was injured; that, as the train passed the crossing where Salmon was standing, a swinging car door struck the injured party and knocked him out of view. Witnesses for the state testified that Salmon was endeavoring to board the train at the time of the accident. The state’s testimony sup-^ ported, the theory that there were no swinging doors on the train at the time of the accident, and that Salmon was not struck by a door. On such testimony, perjury was assigned. Appellant did not testify. No testimony to the effect that a car door was open or swinging at the time of the accident was offered by appellant.

It was alleged in the indictment that the oath was administered to appellant by J. D. Brightwell, deputy district clerk. Appellant contends that district clerks and their deputies are without authority to. administer oaths in judicial proceedings. His position is predicated on the fact’ that article 1693, R. S. 1911, authorizing district clerks to administer oaths and affirmations, and article 1691, R. S. 1911, authorizing deputy district clerks to perform all such official acts as may be lawfully done and performed by the clerk, were omitted from R. S. 1925.

Subdivision 1 of. article 26, R. S. 1925, authorizes the clerk of any court of record in this state to administer oaths, affidavits, or affirmations. Article 3927, R. S. 1925, authorizes a district clerk to charge a fee of 10 cents for swearing each witness. Construed together, these provisions confer authority on district clerks to administer oaths to witnesses in judicial proceedings. Except to appoint a deputy, a deputy clerk is authorized to perform any official ministerial act that may be done by his principal, provided there is no statutory provision or implication to the contrary. Corpus Jsiris, vol. 11, p. 913. Administering an oath is a ministerial act. McKinnon v. McCollum, 6 Fla. 376. Hence the omission from Revised Statutes of 1925 of the articles mentioned did not have the effect of divesting district clerks and their deputies of the authority to administer oaths to witnesses in judicial proceedings. Finding statutory authority for so administering oaths, we do not deem it necessary to discuss other grounds upon which such authority might be predicated.

Appellant contends that the state failed to prove that he (appellant) was sworn by J. D. Brightwell, deputy clerk, as alleged in the indictment. We are unable to agree with, him. ‘ Several witnesses for the state testified that Brightwell swore all the witnesses who testified on the first day of the trial. Moreover, it was shown that appellant testified on the first day of the trial. John Salmon, a witness for appellant, testified that he “heard him (appellant) sworn up there by the deputy district clerk, Mr. J. D. Brightwell.”

The state offered witnesses who testified that before leaving Houston there were no swinging doors on the train. Other witnesses testified that after passing the scene of the accident there were no loose or swinging doors present. As shown by bill of exception No. 3, appellant interposed various objections to the testimony concerning the condition of the train at the time it left Houston. The truth of such objections is not verified. A mere statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch’s Annotated Penal Gode, § 209, p. 134; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. If the bill of exception were sufficient, the evidence objected to, considered in connection with the testimony relative to the condition of the train after passing the scene of the accident, appears to have Keen relevant and material.

Bill of exception No. 4 is in question and answer form, with no certificate of the judge showing the necessity for such form. Bills of exception in question in answer form are not entitled to consideration. Montez v. State, 101 Tex. Cr. R. 582, 276 S. W. 709. Where a bill of exception appears in question and answer form in order to receive consideration, the certificate of the trial judge must show the necessity for such form. Lee v. State, 100 Tex. Cr. R. 664, 274 S. W. 582.

Appellant complains of certain remarks made in the argument of one of the attorneys for the state. The remarks of counsel are set ■ out at length in bill of exception No. 5. Appellant interposed a general objection to such remarks. Some of the statements shown in the bill were unquestionably proper. Those deemed improper were not specified. Hence the bill of exception is insufficient. Moreover, if some of the statements were improper, in the state of the record they could not have been harmful to appellant, and would not, therefore, warrant a reversal. The evidence is amply sufficient to support the con- . viction, and the lowest penalty was awarded appellant. Utley v. State (Tex. Cr. App.) 1 S. W.(2d) 292.

Finding no error, the judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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