No. 2860 | Tex. App. | Mar 12, 1890
We do not think the exceptions to the indictment are maintainable, and we hold, therefore, that they were correctly overruled. It is charged that the statements upon which perjury is assigned were material, and this general averment is sufficient without alleging the facts which show materiality. Washington v. The State, 22 Texas, Ct. App., 26; Partain v. The State, Id., 100. With respect to the allegations as to the character of the house in which the card playing occurred, we think they show, when considered in connection with the allegations of materiality, that said house was an out house where people resorted at the time of card playing.
In the charge to the jury the judge designated the material statement assigned as perjury, said statement being that defendant “did not play cards about the month of April, or in the month of April, A. D. 1889, with Ah. Lewis and Ben Hartgraves, or either of them, in the said Frank Hathway’s room, in said town of Weatherford, in said county and State.” It was proper for the court to thus designate from among the several statements assigned as perjury that which was material, and submit it alone to the jury. Washington v. The State, 23 Texas Ct. App., 336; Jackson v. The State, 15 Texas Ct. App., 579; Donaho v. The State, 14 Texas Ct. App., 638.
We think the evidence sustains the allegation in the indictment that at .the time the card playing occurred the house in which it occurred, known as Hathway’s room, was an out house where people resorted, within the meaning of the statute prohibiting card playing in such houses. Penal Code, art. 355. The fact that the room in which the card playing occurred was occupied at the time as a bed room did not prevent it from being an “out house” within the meaning of that term as used in the statute. As we understand the construction placed upon the term “out house” by our Supreme Court in the cases of Wheelock v. The State, 15 Tex., 253" court="Tex." date_filed="1855-07-01" href="https://app.midpage.ai/document/wheelock-v-state-4888388?utm_source=webapp" opinion_id="4888388">15 Texas, 253, 257, 260, the house in question in this case was an “ out house ” at the time of the card playing.
“A false statement made through inadvertence, or under agitation, or by mistake, is not perjury.” Penal Code, art. 189. This provision of the law was given in charge to the jury, and it was unnecessary, we think, that the jury should have been instructed as to the intoxication of the defendant at the time he made the alleged false statement, or at the time the card playing occurred. It was for the jury to determine from the evidence whether or not the alleged false statement was wilfully and deliberately made, or whether it was made through inadvertence, or under agitation, or by mistake, and in determing this they would, of course, take
Defendant’s bill of exception Ho. 3 shows no error. It was competent for the State to show that the defendant testified before the grand jury that he had not seen any card playing in Frank Hathaway’s room. Such testimony bore directly upon the issue in the case, and was in support of the allegations in the indictment.
It was not error to permit the witness Carson tq read the indictment, and thereby refresh his memory as to the statements made by the defendant when testifying before the grand jury. White v. The State, 18 Texas Ct. App., 57; Hubby v. The State, 8 Texas Ct. App., 597. Said Carson, after examining the indictment, testified from memory as to defendant’s said statements.
Bill of exception Ho. 6 shows no material error. The question and answer complained of were immaterial to the issue submitted to the jury, and were harmless.
• Bills of exception Hos. 7 and 8 show no error, as the rejected testimony was irrelevant and immaterial, and could not legitimately have affected the result.
Bill of exception Ho. 10 shows no error. It was not competent for the defendant to prove what a grand juror said in the grand jury room, at the time defendant testified there, as to the defendant being then in an intoxicated condition. Such testimony would have been mere hearsay, and not within the rule of res gestee under the facts of this case.
There is no bill of exception in the record to the overruling of defendant’s application for a continuance, and we are therefore not required to revise that ruling.
We can not say that any error was committed in refusing defendant’s application to postpone 'the trial to enable him to obtain the testimony of the witness Pickard—that is, any such error as entitles the defendant to have the conviction set aside. While the absent testimony may be regarded as material, we can not say, in view of the evidence adduced on the trial, that it was probably true. On the contrary the truth thereof appears to us to be improbable.
We have carefully considered each of the supposed errors presented in the record, and our conclusion is that no good reason appears for a reversal of the judgment, and it is therefore affirmed.
Affirmed.
Hurt, J., absent.