53 S.W. 346 | Tex. Crim. App. | 1899
Appellant was convicted of perjury, and given four years in the penitentiary.
Court adjourned on July 29, 1899 The statement of facts was approved on July 31st, and the clerk filed same as of term time. The clerk has no authority to do this when same has been approved subsequent to adjournment. If there had been an order to that effect, — which was not the case, — the statement of facts should have been filed, if properly approved, at any time within ten days subsequent to the adjournment. If the statement of facts was filed during the term, as shown by the file mark, then the statement can not be considered for another reason: The judge has no authority to approve a statement of facts after term time, except when an order has been entered authorizing the making up and filing of the statement of facts after such adjournment. If in fact the court signed and approved the statement of facts on the 31st of July, it was subsequent to the adjournment. So in either event this *167 statement of facts can not be considered. There is no attempt at explanation in the record of these matters.
The court was requested to charge the jury that "it is not perjury when a false statement is made through inadvertence or under agitation or mistake. If, therefore, the jury believe from the evidence the defendant did make the false statement charged, but that the same was made under agitation of mind produced by a fit of anger, then you must acquit. You must find from the evidence that the false statement was deliberately and willfully made, before you would be authorized to convict, and unless you so believe, you will acquit." Whether it was to the disadvantage of the defendant that these charges were refused would depend upon the testimony. If the statement was made in anger, it showed a purpose and an intent to testify falsely. The evidence was delivered by her in examination of a charge, wherein the parties whom she was testifying against were on trial, in regard to a burglary. If she went before the court and testified against them, to incriminating facts, because she was angry with and seeking to revenge herself on them, the statements were deliberately and willfully made. The other matters about which the charge was asked were not necessarily fatal omissions. As before stated, that would depend largely upon the testimony. If it was clear and conclusive that the statements were deliberately made, we could hardly see how the omission to caution the jury with reference to those questions would require a reversal, or how she could have been injured. If the question arose under the facts as to whether these statements were made through inadvertence or mistake, or under agitation, or whether they were deliberately and willfully made, the court should unquestionably have presented this phase of the law. But the applicability of charges depends upon the testimony adduced upon the trial, and the evidence is not before us, and may have demonstrated the statement to have been willfully and deliberately made. As presented, we see no error in the refusal of the court to give these charges.
The jury, after receiving the charge of the court, retired to consider of their verdict. After their retirement the district attorney suggested to the court that his charge was erroneous in stating the minimum punishment, in that he informed the jury to assess said punishment, if they should find her guilty, "at confinement in the penitentiary not less than five nor more than ten years." The court recalled the jury and changed this part of the charge, and informed them that such punishment would "not be less than two nor more than ten years," in accordance with the recent statute changing the minimum punishment from five to two years. It is contended by appellant in her bill of exceptions that this was without authority, and prejudicial to her rights. We do not concur in this contention. She is not without authority to sustain this proposition under the previous decisions of this court. In Granger v. State, 11 Texas Criminal Appeals, 455, it was said that, "when the charge which is given by the court is read to the jury, it is required to be filed, and from that time constitutes a part of the record in the case." Article 680 of the Code *168
of Criminal Procedure, as it was then numbered, was cited in support of that statement, which article is now 718 of the Code of Criminal Procedure. It was further stated that said charge after being read and filed, "can not be altered or amended in any manner without the consent of the defendant. To do so constitutes error requiring a reversal." And in support of this statement counsel cites Goss v. State,
It is contended by appellant that by this action of the court her rights were taken away from her, or that she was thereby seriously injured. We are not aided by brief of appellant's counsel, nor are we informed wherein her rights were injured. We do not think the statute accords the right to a party accused of crime to have the court erroneously state the law. His rights, on the other hand, are found in the constitutional guaranty of a fair trial under the laws of the land; and it is only when his rights are invaded with more or less cogency that he is justified in asking a reversal on appeal, or new trial in the court a quo. If the charge had remained as originally written, with the minimum punishment as therein stated, — five years, — she would have had a serious cause of complaint, because the law as it now is fixes the minimum punishment at two years in the penitentiary. We can not concede that appellant had a legal right to have the charge remain as originally illegally stated. Finding no such error as requires a reversal, the judgment is affirmed.
Affirmed.