“The submission of only one of several counts would not constitute an amendment or alteration of the indictment.”
How later courts described this case
- “The submission of only one of several counts would not constitute an amendment or alteration of the indictment.”
Written by the judges who cited it.
The opinion
DAVIDSON, Judge,
(dissenting).
The alleged false statement consisted of several different facts: (a) that the accused had only one compensation claim in his lifetime on which he received compensation; (b) that he collected money on such claim at settlement; and (c) that such was the only time he ever collected money from an insurance company.
Having so alleged, proof was required that the false statement was false in solido. Adams v. State, 49 Texas Cr. Rep. 361 , 91 S.W. 225 .
The state being required to prove the falsity of the state *560 ment, in solido, it became necessary that the indictment allege that the statement was false in solido.
The indictment alleged that the statement was false in that “in fact and in truth,” in 1956, appellant had collected money from an insurance company.
Though it could have been true that appellant had so collected money from an insurance company, yet such by no means showed the falsity of the statement relied upon, because there is no allegation that the money collected from the insurance company was by reason of and for a compensation, claim and paid in settlement thereof.
Without such allegation, the falsity of the statement is not charged.
Everything the state charged in the indictment as being true could be so, and would not be false under the allegation of truth.
The indictment does not charge, therefore, the offense of false swearing, because there is no allegation showing the falsity of the statement charged to have been falsely made. See: Knight v. State, 71 Texas Cr. Rep. 36 , 158 S.W. 543 ; Brown v. State, 40 Texas Cr. Rep. 48 , 48 S.W. 169 .
This conviction should be reversed and the prosecution ordered dismissed because of a fatally defective indictment.