22 S.W. 976 | Tex. Crim. App. | 1893
Appellant was convicted of perjury, and his punishment assessed at five years confinement in the penitentiary, from which he appeals.
1. The appellant complains that the court erred in permitting the State's witness to testify, that in swearing to the application for continuance, upon which the perjury was assigned, he swore that the facts therein set forth were true to the best of his knowledge and belief, for the reason that there was no allegation to that effect in the indictment. It is wholly immaterial whether appellant swore to the truth of the facts set forth according to the best of his knowledge and belief, or that they were absolutely true. In either event, he was duly sworn within the meaning of the code. It was not necessary that the indictment should set forth the form of the oath. It was sufficient to allege that appellant was duly sworn. West's case, 8 Texas Cr. App., 122; Massie's case, 5 Texas Cr. App., 84. If the form of the oath or the manner of administering it had been needlessly set forth, then the proof would have to correspond. West's case, supra.
2. The appellant complains, that the court erred in submitting to the jury the assignments of perjury upon the allegation that the witness John Thompson was not absent by the procurement of defendant; first, because there was no testimony supporting either assignment except John Thompson's evidence; and second, the character of said Thompson for truth and veracity was clearly shown to be bad; and besides, he was an accomplice. If appellant's position is correct, the court erred in submitting the issue when there was no evidence to support it; but we do not agree with counsel as to the facts. The record shows, that Lute Beach being indicted for carrying a pistol, his case was called for trial on the morning of December 10, 1888, at 11:30 or 12 o'clock, when defendant asked time to prepare an application for a continuance. The court adjourned; and immediately before it met after dinner, Lute Beach went before the clerk, and swore to his application, and when court met he presented it. This was at 1 o'clock. The application was based on the absence of one John Thompson, who would swear "the so-called 'pistol' was a bottle of whisky." *253
Leaving out Thompson's testimony, it is shown that the witness Thompson came to town in a wagon with the two Laney brothers. They reached town before court adjourned in the morning. Defendant, shortly after their arrival, was seen with Thompson in front of a saloon, where they had a private conversation together, and afterwards was seen drinking with him in the rear of the saloon, and knew of his presence in town at the time he swore to the application for a continuance. All the witnesses show that Thompson was in town from 11 o'clock until after 3, and at one time was in the court house, and most of the time upon the court house square, or in the saloon on the square. The witnesses Tom Laney, Oxford, and Barnes unquestionably show Beach and Thompson were together before and during the adjournment of court. We think the testimony ample to support the action of the court in presenting the issues to the jury, whether the witness was absent by the procurement or consent of the appellant. Knowing that Thompson had come to town (Stephenville), he asked time to prepare an application for a continuance on account of his absence, and employed the hour of adjournment in preparing an application for an alleged absent witness, who he knew was present, and with whom he was drinking and holding private conversations in a stone's throw of the court house. It would be an affectation of doubt to say that the witness may have been absent without his consent.
3. But if there was, we could see no reason for disturbing the verdict upon the second and third assignments of perjury, "that the application was not made for delay," and "that there was no reasonable expectation that the attendance of said witness can be procured during the present term of the court by a postponement of the trial to some future day of the term." The undisputed facts in the case show the contrary to be true. The process of the court was at appellant's command to enforce the attendance of the witness then and there, if he was unwilling to come into the court house.
4. But it is insisted that the verdict is fatal because it does not appear upon what assignment the same was found, and the proof is not sufficient to sustain them all. If we take Thompson's testimony into consideration, there is no question as to appellant's guilt on all the assignments. It is well settled, that where there are several assignments of perjury, and there is proof sufficient to sustain any good assignment, a general verdict will be sustained. 2 Bish. Crim. Proc., sec. 934; Whart. Crim. Law, 2260; 2 Greenl. Ev., sec. 93; Am. and Eng. Encycl. of Law, title "Perjury," sec. 7.
5. But counsel insist, that one can not be convicted of perjury upon circumstantial evidence in Texas, because the code declares, that "in trials of perjury, no person shall be convicted except upon the testimony of two credible witnesses, or upon the testimony of one credible witness *254 corroborated strongly by other evidence as to the falsity of defendant's statement made under oath, or upon his own confession in open court." Code Crim. Proc., art. 746. It was decided by this court, that in order to convict of perjury, it is not required in every case that the two witnesses must swear directly adversely to the fact or facts sworn to by the defendant, but it is sufficient when the facts sworn to by said witnesses, if true, conclusively demonstrate defendant's guilt. Thus, if the facts so sworn to, if true, show that defendant must have been ignorant of the matter about which he swore, it is sufficient to sustain a conviction (Maines' case, 26 Texas Cr. App., 22); or when the facts testified to by said witnesses conclusively show as true that defendant swore contrary to what he necessarily knew to be the truth. United States v. Wood, 14 Pet., 430; 2 Bish. Crim. Proc., sec. 932. There is ordinarily no other way of proving the second and third assignments of perjury as "to delay" and "reasonable expectation of procuring attendance of witness" except by circumstantial evidence, and if perjury can be assigned at all (of which we have no doubt) on these statements, they must be proven by facts conclusively showing their falsity.
6. Appellant complains that the court erred in not instructing the jury to disregard the testimony of Thompson, because he was an accomplice to the act of perjury. The evidence of Thompson was, that as soon as he came to town, Lute Beach met him, told him he had issued a subpoena for him, and he must keep out of the way until he got his case continued; that he did not know defendant was going to make the application for a continuance and swear to it. In his admirable charge the court instructed the jury on what constituted an accomplice, and then instructed them, if Thompson came within such requirements, to disregard his testimony. The court did not err in not specifically telling them to disregard his testimony if he was not a credible witness. The court carefully charged what a credible witness was, and that to convict of perjury it must be on the testimony of two credible witnesses, or one with strong corroborating evidence. This was sufficient under Muely's case, 31 Texas Criminal Reports, 155.
7. The indictment in the case was well drawn. It was not necessary that it should set forth the fact that the State had announced ready for trial. It was not necessary that such should have been done to constitute the crime of perjury. It was the false oath taken by appellant that constituted the crime; and it could have been made and presented to obtain a continuance without an announcement of ready on the part of the State. The indictment clearly states that the cause was upon regular call, and the defendant swore to the application to obtain a continuance, and the oath was necessary and required.
We have given earnest and laborious investigation to this case, and we can not escape the conclusion of appellant's manifest guilt, and that *255 he has had a fair and impartial trial. In view of the many instances of perjury tainting our legal proceeding, and especially in this very matter of obtaining continuances, it would seem that this court should carefully avoid erecting barriers against the arms of justice, to the end that there may be a better administration of the law. The judgment is affirmed.
Affirmed.
Judges all present and concurring.