199 S.W. 633 | Tex. Crim. App. | 1917
This conviction is for perjury. The indictment charged perjury before the grand jury of Titus county in making under oath therein a false statement by appellant that he had bought whisky from John Lennox. Some of the grand jurors testified to the facts, in detail, showing that appellant appeared before the grand, jury; that the oath was duly administered, and that appellant gave the testimony set out in the indictment.
The record shows that the trial was had at the June term of the district court of Titus county in 1917, and¡ that the indictment was returned in said court at that term, it having been filed on the 19th day of June, 1917. Upon this indictment appellant was arraigned, and it with its indorsements was in^the hands of the grand jury. It was signed F. E. Fleming, foreman of the grand jury.
The appellant presented a special charge, which was refused and is preserved in bill of exceptions No. 1, from which it appears the court was requested to instruct a verdict of not guilty, to which exception was reserved in the following language:
“To which action of the court the defendant, by his counsel, then and there excepted, on the ground that the state, failed to prove that the false statements, which the 'defendant wats charged, in the indictment under which he was tried herein, to have made were made in Titus county, Tex., and because the testimony failed to show that the grand jury of which F. E. Fleming was foreman, and before which the state’s testimony showed that said false statements were made, was a grand jury in and for Titus county, Tex., or any other county, or in the state of Texas. Defendant here now insists that venue was not proven in said case as is required by law, and for said peremptory instruction should have been given.”
Article 93S, C. O. P., contains the following with reference to the procedure in the Court of Criminal Appeals:
“In all cases, the court shall presume that the venue was proven in the court below, * * * unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by a bill of exceptions.”
Soon after this statute was enacted in 1897, this court, in the ease of McGlasson v. State, 38 Tex. Cr. R. 360, 43 S. W. 93, a case in which a special charge in substance likp the one in question here, expressed itself as follows:
“It occurs to us that this statute requires the court to indulge the presumption that the venue was proved in the court below, unless the bill of exceptions shows affirmatively that it was not proved. This would seem to apprehend that, before we can treat the venue as not proved, the court must either certify that the evidence did not establish the venue, or that said bill of exceptions should contain all the testimony in the case tending to show venue, and certify that same was all the testimony bearing upon that issue; and from this statement of the testimony it affirmatively appears that the venue in the case was not proved. If this be a true construction of said article, then the bill in question does not comply with the requirements of the law.”
Since that decision was rendered it has been followed as stating the correct rule. Lane v. State, 69 Tex. Cr. R. 65, 152 S. W. 899; Johnson v. State, 72 Tex. Cr. R. 389, 162 S. W. 512; Scott v. State, 42 Tex. Cr. R. 607, 62 S. W. 419; Garrett v. State, 61 Tex. Cr. R. 515, 135 S. W. 532; Brown v. .State, 71 Tex. Cr. R. 353, 162 S. W. 339.
The evidence shows that appellant testified before the grand jury that he purchased whisky from John Lennox. Appellant testified on the trial that he did purchase a bottle of whisky from John Lennox and paid him therefor, giving specific details as to the
“It is not required that the state’s witnesses must swear directly adversely to the alleged false statement, but it is sufficient when the • facts sworn to, if true, conclusively , demonstrate that defendant swore falsely. Maines v. State, 26 Tex. App. 22, 9 S. W. 51; Beach v. State, 32 Tex. Cr. R. 240, 22 S. W. 976; Miles v. State [73 Tex. Cr. R. 493], 165 S. W. 567; Miller v. State, 42 Tex. Cr. R. 385, 60 S. W. 673.”
Finding the evidence sufficient to support the conviction, and no reversible error in the conduct. of the trial, the judgment of the lower court is affirmed.
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