No. 802. | Tex. Crim. App. | Nov 29, 1893
Appellant was allotted a term of five years in the penitentiary for the crime of perjury.
1. The perjury was assigned upon defendant's testimony on his trial for swindling a bank in Waco by means of a certain draft, and on which trial *467 he testified that he was not in Waco at the time the money was obtained, but was in the city of Fort Worth. The draft was set out in this indictment, and also offered in evidence on the trial. Objection was urged to it because of a variance. If it be true there was a variance, it was immaterial in this case, because the allegations pertaining to the draft were made as matter of inducement, and for the purpose of identifying the former case and trial only, in which defendant was charged with having committed the alleged perjury. Upon his trial for the swindling, the variance, if any, would have been a question of more or less import, according to the terms of the allegations in said indictment; and had the instrument been set out by its tenor in that indictment, and a variance shown, a reversal in this court upon that conviction might have followed. But it did not constitute any material issue of the perjury assigned in this case. We would remark, however, that the variance is not apparent.
2. The alleged objectionable remarks of the county attorney were, upon objection, promptly withdrawn by the court, and the jury instructed to discard and not consider same. No injury is shown to have resulted. Willson's Crim. Proc., sec. 2321.
3. The objection that the testimony fails to show the court was in session and a judicial proceeding pending at the time the perjury was committed, is not borne out by the record; hence the court did not err in failing and refusing to instruct the jury to acquit upon this ground. The testimony of the witness Taylor, as well as that of Beasley, is emphatic upon this point. The records, except the indictment for swindling, were not introduced in evidence, but these witnesses testify fully to the trial, etc., in the swindling case. There were no objections urged to this manner of proof when it was made. Nor was it necessary to introduce in evidence in this case the warrant for the arrest of the defendant in the swindling case, or make proof that he was under arrest at the time he testified in that case.
4. The court, in passing sentence upon defendant in this case, said to him, "this sentence will begin at the expiration of the sentence which you, the defendant, are now serving out." This was objected to, because there was no evidence introduced showing that he had been convicted of another crime. In the absence of proof to the contrary in this connection, we presume the court was performing its duty as required by article 800 of the Code of Criminal Procedure, in regard to cumulative sentences. But if in fact he was not convicted of the former offense, we are at a loss to know how this remark could injure defendant.
5. The testimony sustains the conviction, and the judgment is affirmed.
Affirmed.
Judges all present and concurring. *468