
    WHITE v. STATE.
    (No. 9672.)
    (Court of Criminal Appeals of Texas.
    April 21, 1926.)
    Perjury <&wkey;2 — Part of statute defining method of charging and trying for perjury held repealed, so that previous act for which prosecution was pending cannot be punished (Code Cr. Proc. 1911, art. 465, as amended by Acts 38th Leg. c. 42; Code Cr. Proc. 1925, art. 408; Pen. Code 1925, art. 17).
    The part of Code Cr. Proc. art. 465, as amended by Acts 38th Leg. c. 42, a statute of procedure, defining the method of charging and trying a person for perjury, being omitted from the 1925 revision (the remainder of the article being brought forward and incorporated in Code Cr. Proc. 1925 as article. 408), was repealed without saving clause, under the general repealing clause of Code Cr. Proc. 1925, p. 181, and so punishment cannot be inflicted for an act done while the law was in force, and for which prosecution was pending at time of repeal;'Pen. Code 1925, art. 17, providing that no offense committed and no penalty incurred under existing laws previous to this Code taking effect shall be affected by repeal herein of any such laws not affecting the question. <S=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Wood County; J. B. Keith, Judge.
    M. H. White was convicted of perjury, and appeals.
    Reversed, and dismissal ordered.
    Oxford & Johnson, of Stephenville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is perjury, and the punishment is two years in the penitentiary.

The indictment is drawn under section 1 of article 465 of the C. C. P., as amended by the Acts of the Thirty-Eighth Legislature, Regular Session, found on page 83 thereof. The indictment charged, and the proof tended to show, that the appellant had made contradictory statements under oath in a certain legal proceeding; the substance of the indictment being that, before a court of inquiry held by a justice of the peace of. Hood county, he made a statement under bath in conflict with and contradictory to a statement made by him before the grand jury of Hood county.

The point is made that, under the statute as amended, the indictment is insufficient to form the basis for a charge of perjury, and that the evidence is insufficient to support the judgment.

That part of section 1, article 465, supra, under which the indictment is drawn, reads as follows:

“And where a party is charged with having made contradictory statements, under oath in a legal proceeding, it shall be sufficient to charge in the indictment and to prove upon the trial that in one legal proceeding he made a statement knowingly and willfully under an oath legally administered, which is contradictory of another statement made by him under oath lawfully administered in a legal proceeding; and where it clearly appears that the statements so made are contradictory and irreconcilable, that is, statements both of which cannot be true, it shall not be necessary to prove which of such statements is false; provided that the making of each statement shall be set out in the indictment with the same elements and the same particularity as if it was the sole statement charged, and the fact so charged shall be proved as in other eases of perjury. Provided, that no conviction shall be had unless the false statement is material to same issue in the matter under inquiry.”

In bringing forward article 465, supra, it is incorporated in the 1925 Revision of the O. O. P. as article 408, and the portion of said article quoted above is entirely omitted in the 1925 Revision. Under the general repealing clause of the 1925 Revision of the O. C. P. we find the following statement:

“All penal laws and all laws, relating to criminal procedure in this state, that are not embraced in this act and have not been enacted during the present session of the Legislature, be and the same are hereby repealed. All laws and parts of laws relating to crime omitted from this act have been intentionally omitted, and all additions have been intentionally added, and this act shall be construed to be an independent act of the Legislature enacted under the caption hereof, and the articles contained in this act, as revised, rewritten, changed, combined and codified shall not be construed as a continuation of former laws, except-as otherwise herein .provided.” Code Cr. Proc. 1925, p. 181.

The state calls attention to article 17 of the 1925 Revision of the P. 0., which is to the following effect:

“No offense committed and no fine, forfeiture or penalty incurred under existing laws previous to the time when this Code takes effect shall be affected by the repeal herein of any such laws.”

Contention is made that, under article 17 of the P. C., although the portion of the statute first quoted herein was repealed, yet its repeal does not affect this case, in view of the fact that the offense was committed before the adoption of the Code. It must be borne in mind that article (O. C.) 465 was a part of the C. C. P. and not a part of the P. C., and that article 17, supra, is’a portion of and applies only to the P. C. We think it clear that said article 17 of the P. C., supra, does not affect or in any manner control a proper construction of the C. C. P. There is no such saving article found in the C. C. P., but on the contrary it seems clear from ar-tide 1 of the repealing clause thereto that it was the intention of the Legislature to repeal all portions of the C. O. P. that were not expressly embraced therein. The article of the statute under which this indictment was drawn, as above stated, was found in the C. O. P., and was in fact a statute of procedure. By its repeal the Legislature did not repeal the offense of perjury, but simply repealed a procedural statute which attempted to define the method of charging and trying a person for the commission of that offense.

The statute having been repealed without a saving clause pending the prosecution, no punishment can be inflicted, although the act was done while the law was in force. Wall v. State, 18 Tex. 682, 70 Am. Dec. 302; Greer v. State, 22 Tex. 588; Sheppard v. State, 1 Tex. App. 522, 28 Am. Rep. 422; Hubbard v. State, 2 Tex. App. 506; Tuton v. State, 4 Tex. App. 472; Halfin v. State, 5 Tex. App. 212; Whisenhunt v. State, 18 Tex. App. 491; Kenyon v. State, 23 S. W. 191, 31 Tex. Cr. R. 13; Hall v. State, 106 S. W. 149, 52 Tex. Cr. R. 195.

From what has been said, it follows that in our opinion the judgment of the trial court should be reversed and the prosecution ordered dismissed.

PER OURIAM.

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.  