Schooler v. State

106 S.W. 359 | Tex. Crim. App. | 1907

Appellant was convicted of perjury, and his punishment assessed at five years confinement in the penitentiary.

The facts show, in substance, that appellant was tried in the county court, on proper information, with unlawfully carrying on and about his person a pistol in the County of Jackson, State of Texas. On trial of the case, appellant, in his own behalf, swore that he did not have a pistol at the time and place alleged in the information. The grand jury returned an indictment against appellant charging him with swearing falsely to the last statement. The indictment is in proper form. The evidence abundantly supports the verdict of the jury.

Bill of exceptions, No. 1, shows that appellant requested the court to charge the jury that before they can convict the defendant for the offense of perjury, they must believe beyond a reasonable doubt that the jury which was empaneled in the county court of Jackson County, Texas, to try, and did try the defendant, was duly sworn to try that particular case, and if they do not so believe beyond a reasonable doubt to acquit appellant. This question has been decided against appellant in the case of Smith v. State,31 Tex. Crim. 315. There is no question but what appellant took the oath in the course of a judicial proceeding, which oath was necessary to a due administration of the laws of the State. The sheer fact that the jury were not sworn, would not entitle appellant to a verdict of not guilty in a subsequent trial for perjury. See Anderson v. State, 20 Texas Crim. App., 312; Cordway v. State, 25 Texas Crim. App., 405; and Anderson v. State, 24 Texas Crim. App., 705.

The only remaining insistence is that the court used the disjunctive "or" in presenting the issue to the jury instead of the conjunctive "and" in the following: "Did carry on or about his person a pistol." This criticism is hypercritical.

There is no error in this record, and the judgment is affirmed.

Affirmed.

Henderson, Judge, absent.