24 S.W. 908 | Tex. Crim. App. | 1894
Appellant was convicted of perjury, and his punishment fixed at five years in the penitentiary, from which he appeals. On the night of the 29th of January, A. D. 1893, a difficulty occurring between appellant and one Ella Sanders near a show tent in the town of Marlin, a bystander, Levi Myers, interposed in defense of Ella, and, after scuffling sometime, appellant broke away, and, rushing upon Ella, struck her. She thereupon promptly knocked him down, and, falling upon him, began beating him. Her mother also took part in the affray, beating him with some palings. A general melee ensued, when the parties were separated. The parties were all negroes; the appellant, a medium-sized negro. The two women were unusually large and stout. Appellant was arrested on the charge of an aggravated assault and battery on Ella Sanders, by striking her with his fist. Upon trial he took the stand in his own behalf, and swore he did not strike her. He was indicted in this cause for perjury, and on trial the only assignment of perjury submitted to the jury was, Did the defendant so testify, and was the statement falsely, willfully, and deliberately made?
1. Appellant claims the court erred in ruling out the judgment of acquittal rendered in the case in which the perjury is alleged to have been committed. The State introduced the complaint, information, the evidence of the trial, and the testimony of appellant given under oath. The appellant then offered the judgment of acquittal, which was excluded by the court, and he excepted. There was no error. While it has been held that such evidence is admissible as inducement (Davidson v. The State, 22 Texas Crim. App., 373; Kitchen v. The State, 26 Texas Crim. App., 172), yet it is not admissible to show the guilt or innocence of a defendant; and, where it is admitted, the failure of the court to limit it by its charge and instruct the jury that *73 it can not be considered as proof of guilt, is a good ground for a new trial. 26 Texas Crim. App., 172. If it can not be considered as bearing upon the guilt or innocence of the defendant, it is not perceived where the materiality of such testimony can be. Perjury can be committed in a case where there was a mistrial; and the organization, jurisdiction of the court, and pendency of the proceedings may be shown without the judgment. It would certainly be the better plan to exclude the judgment of former case from the jury passing on the question of perjury, and leave them free from bias or influence that may probably be engendered by the action of a jury in the first case. Article 751 of Code of Criminal Procedure has no application to this question.
2. Appellant complains that the court erred in permitting the county judge to state a part of appellant's testimony given in his trial for an aggravated assault without qualifying himself as a witness, because before he could testify to any fact stated he must be able to repeat substantially the entire testimony as given by appellant.
While this doctrine is supported by some old authorities (Rex v. Jones, and Rex v. Dowlin, Peake, 37, 170), it is now held to be necessary to prove only so much of the testimony of the defendant as relates to the particular fact on which the perjury is assigned. United States v. Erskine, 4 Cranch C. C., 299; Willson's Crim. Stats., sec. 306. Perjury may be assigned on such portions of the testimony as was directly or indirectly material to the issue, and the proof of any one assignment would sustain the conviction. Beach's case,
In the case at bar the county judge testified, that "while he could not repeat the substance of appellant's testimony, he remembers that appellant testified very positively he did not strike Ella Sanders on the 29th of January, A. D. 1893, and he remembers this part of the testimony because it was so different from all the other witnesses." We do not think the court erred in admitting this testimony.
3. In the ninth assignment of error, appellant insists that as the evidence shows that at the time he struck Ella Sanders the said Ella and her mother were making a violent attack on him, he struck in self-defense, and it was wholly immaterial that he swore falsely about striking the said Ella. The record does not show any such facts. On the contrary it shows that when appellant ran from behind Levi and struck Ella she was doing nothing. But, conceding the facts to be as stated by appellant, we can not understand how the justice of any quarrel can excuse one in swearing falsely about it, especially where, as in the case at bar, the false statement bore directly on the issue before the jury, which was, whether appellant had committed an aggravated *74 assault and battery upon Ella Sanders. The court correctly held that the perjury was assigned on material matter.
4. We find no error in the charge.
There is sufficient testimony to sustain the verdict, and the judgment is affirmed.
Affirmed.
Judges all present and concurring.
