37 S.W. 741 | Tex. Crim. App. | 1896
Lead Opinion
Appellant was convicted of perjury; hence this appeal. There are six distinct assignments in the indictment on which the perjury is predicated, as follows: (1) "It then and there became a material inquiry before the said grand jury, and necessary for the due administration of the criminal laws of said State, whether the *586 said John Fry had seen any person bet or wager at a gaming table or bank, kept or exhibited for the purpose of gaming, in Jim Love's room, in the town of Jacksonville, in the said county and State, within two years before the said 11th day of December, 1893." (2) "Whether the said John Fry had bet or wagered at a gaming table or bank, kept or exhibited for the purpose of gaming, in Jim Love's room, in said town of Jacksonville, in said county and State," etc. (3) "Whether the said John Fry had seen Jim Love keep or exhibit a table or bank, for the purpose of gaming, in the said Jim Love's room, in the said town of Jacksonville, in said county and State, at any time," etc. (4) "Whether the said John Fry had seen any person bet or wager at a game then and there played with dice, called 'craps,' in the said Jim Love's room, in the town of Jacksonville, in the said Cherokee County; * * * said room not then and there being a private residence." (5) "Whether the said John Fry had seen any persons bet or wager at a game with cards called 'monte' in the said Jim Love's room," etc. (6) "Whether the said John Fry had seen any person playing at a game with cards in said Jim Love's room, in the said town of Jacksonville, in said county and State, at any time within two years," etc.; "said room then and there being an outhouse, where people did then and there resort for the purpose of gaming." There was no motion made to quash the indictment, or any assignment of perjury therein contained. However, a motion in arrest of judgment was made, the grounds of the motion being as follows: (1) "Because it does not appear from the face of the indictment that an offense against the law was committed by the defendant;" and (2) "because the offense attempted to be charged in said indictment is not set forth in plain and intelligible words." In the brief of counsel for the appellant, objections were made to all of the assignments of perjury. We pretermit any expression of opinion as to the sufficiency of the last three counts in the indictment, and the testimony supporting the same. We will now consider whether the first three counts are sufficient. The indictment charged that it was necessary and material to know whether "John Fry (appellant) had seen any person bet or wager at a gaming table or bank, kept or exhibited for the purpose of gaming," etc. This allegation is objected to upon the ground that it is in the alternative. Appellant swore that he had not seen any person bet or wager at a gaming table or bank, kept or exhibited for the purpose of gaming, in Jim Love's room, in the town of Jacksonville. If this statement was false and deliberately made, it was perjury. It is not necessary, in order for it to be perjury, that the witness (appellant) should have stated that he had not seen any person wager at a gaming table, etc., or that he had not seen any person bet at a gaming table, etc. When he swore that he had not seen any person bet or wager at a gaming table or bank, he denied as emphatically that he had seen any person bet or wager as if each had been denied separately and distinctly from the other. These observations apply to "table or bank," as well as to "keeping or exhibiting." It is true that, in charging an act in an *587 indictment, the charge must not be in the alternative, but we know of no case or law which would require this rule to be applied in setting forth the statement assigned for perjury. The indictment should set forth what the witness swore substantially as he testified, and if the statement assigned for perjury be material, and was wilfully and knowingly made, it is perjury, whether the statement be in the conjunctive or disjunctive form. We are of opinion that the first three assignments of perjury are sufficient. The question then arises, as there may be three defective assignments of perjury with the three good assignments, whether a general verdict can be sustained. It will be borne in mind that there was no motion to quash either assignment, nor was there any objection urged to evidence tending to support the assignments which are claimed to be defective. Under this state of case, what is the law? Mr. Bishop, in his New Crim. Proc. (Vol. 1, § 1015, Subdiv. 2), says: "On a bad count, mingled with good ones, the court has no right to receive evidence against the defendant's objections. Properly, the ill count should be quashed. If it is not, and the court refuses to exclude evidence applicable only to it, and does not direct the verdict to be limited to the good counts, a general finding of guilty will be set aside." Subdivision 4, "If good and bad counts appear together at the sentence, or, on error, all have been treated at the trial as good, and no objection to evidence having been saved, the case is the same as when any other incompetent evidence was introduced with the defendant's tacit consent. He cannot now complain of it, but can object to being sentenced on a bad count, as is elsewhere shown. Still, treating the bad count as surplusage, he may be sentenced on the good counts. Moreover, a general sentence on good and bad counts is not reversible on a motion in arrest of judgment or on error, if sustained by the good ones." This court has recognized this doctrine in a number of cases. See, Shuman v. State, 34 Tex.Crim. Rep.; English v. State, 29 Tex.Crim. App., 174, and authorities cited. The judgment is affirmed.
Affirmed.
Addendum
In the opinion in this case, we held the first three assignments of perjury in the indictment good. We were laboring under a misapprehension of the contention of appellant in regard to these assignments. The first assignment is based upon the testimony given before the grand jury, that appellant had not seen Jim Love exhibit or keep a table or bank for the purposes of gaming, etc. This is alleged to be material, and was material. The indictment charges that, "whereas, in truth and in fact, the said John Fry (appellant) had seen the said Jim Love keep and exhibit a gaming table or bank for the purposes of gaming," etc. The defect in this assignment consists in alleging this matter in the alternative. It is not alleged *588 that he did see Love keep and exhibit a gaming table, nor is it alleged that appellant saw Love keep and exhibit a bank; but it is alleged that appellant saw Love keep and exhibit one "or" the other — a gaming table "or" bank. Now, if a gaming table and bank are the same thing, this allegation is sufficient. But, if there be a difference between a gaming table and a bank, then it is insufficient. Is there a difference? We think there is. See, Webb v. State, 17 Tex.Crim. App., 205. These observations apply with equal force to the second and third assignments of perjury. However, there is a good assignment for perjury, to-wit, that pertaining to monte. The indictment charges that it "became and was a material inquiry, before said grand jury, * * * whether the said John Fry (appellant) had seen any person bet or wager at a game played with cards, called 'monte.' " The indictment alleged that appellant testified, before said grand jury, that he had not seen any person bet or wager at a game played with cards, called "monte." The closing words of this assignment in the indictment are as follows: "Whereas, in truth and in fact, the said John Fry had seen persons bet or wager at a game played with cards, called 'monte,' " etc. The objection to this assignment is that there was no such game played with cards as monte, and therefore this was immaterial matter; that monte is a banking game, and is not known as a "game played with cards." We do not agree with this contention. The game of monte, although a banking game, is a game played with cards; and it is a game where the players bet on certain cards of a layout, and win or lose according as others drawn from the pack do or do not match with these. As above stated, this assignment is good, and was amply sustained by the evidence on the trial. As was said in the original opinion, "there was no motion made to quash the indictment or any assignment of perjury therein contained," and there was no objection to testimony introduced to support any assignment. The court was not requested to confine the jury to this good assignment, or any particular assignment. This matter was first brought forward in the motion in arrest of judgment. We adhere to the rule, stated by Mr. Bishop, which is given in the original opinion in this case. There being a good assignment in the indictment, and the evidence in the record supporting that good assignment, although there is evidence tending to support the bad assignments, they will be treated as surplusage, and the case will be considered as if testimony had been admitted on the good assignment not pertinent thereto, which could have been excluded, but was not objected to. This, as we understand it, is the rule laid down by Mr. Bishop; and it appears to us to be a sound and logical rule. If the defendant chose not to make any motion to quash the indictment, or any of the particular assignments, and not to object to the introduction of evidence, notwithstanding the bad counts or assignments in the indictment, yet, if there is a good count or assignment, and the testimony supports it, the verdict will be applied to such good count or assignment; and it will make no difference in this regard if the court may *589 have charged on the bad counts or assignments as well as on the good one. Where the question is raised for the first time on motion in arrest of judgment, the verdict of the jury, where the evidence supports it, will be applied to the good count or assignment, and the judgment upheld. See, 1 Bishop's Crim. Proc., § 1015, Subdiv. 2. The motion for rehearing is overruled, and the judgment affirmed.
Motion Overruled.