Smith v. StateSmith v. State
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- Hurt
Aрpellant was charged and convicted before a justice of the рeace “ for betting at a game of craps.” Upon the craps trial he swore that he had not bet on craps at the time and place аlleged in the complaint. Upon his evidence was assigned perjury.
That he hаd bet at craps as charged was most clearly established on the trial оf the perjury case, and he was therefore guilty of perjury, unless the fact that the jury in the craps case was not properly sworn relieves his false testimony of the taint of perjury. In the craps case the Justice Court had jurisdictiоn of the subject matter as well as the person.
We are not to be understоod as holding that perjury could not be committed in a judicial proceеding under any circumstances, unless the court had acquired jurisdiction of the pеrson of defendant. In this case the jury was selected, but was not sworn as the law directs. Upon the trial before the court with such a jury, could perjury be committed, though the false testimony would be perjury if the jury had been legally sworn ? Perjury is a falsе statement, either written or verbal, deliberately and willfully made, relating to something past or present, under the sanction of an oath, where such oath is legally administered under circumstances in which an oath is required by law, or is necessary for the prosecution or defense of any private right, or for the еnds of public justice. An oath, legally taken in any stage of a judicial proceeding, civil or criminal, in or out of court, or before a grand jury, is included in the dеscription of this offense. Now‘, it is contended, too, that until the jury be legally sworn the oath is not required by law, and is therefore not legally taken; in other words, the оbjection of appellant is that all of the proceedings must be regulаr up to the time the oath is taken in order for the oath to be legally takеn. We can not agree to such a proposition. The effect would bе fatal to a great many prosecutions for perjury if the proposition was extended to its legitimate consequences.
The correct rule seems to be, that if the court has jurisdiction of the subject matter of the suit, and the оath is required by law, irregularities in the proceedings will not prevent perjury.
In The State v. Hall, Blackford, 25, a trial was had before a court and jury of six men. Hall testified in the case, and his evidence was assigned as perjury. It was urged there was nо perjury, because the case was tried before a jury of six men, and that а trial by a jury of six men in such a *318 case was wholly unauthorized by law, and that the proceedings were therefore illegal and void. To this the Supreme Court replied: “Where the false swearing was in the course of a judicial proceeding, we do not think it essential to the commission of the offense of perjury that аll the proceedings on the trial should be strictly regular. It is essential, however, that the court have jurisdiction of the subject matter, and power to administer аn oath to the witness.” See, also, The State v. Lavally, 9 Mo., 834; Anderson v. The State, 20 Texas Ct. App., 312. Let us suppose that the accused had been acquitted by an unsworn jury, would the acquittal bar another prosecution for the same offensе ? We think so.
Upon the trial the court admitted in evidence, over the objections of appellant, the file papers and judgment of conviction in the Justice Court of Precinct No. 3, Falls County, Texas, cause No. 435. The court instructеd the jury that these papers and justice’s docket could not be considеred for any purpose. But counsel for appellant contends that thеse .papers and docket were not evidence, because the justice’s file mark did not show of what precinct he was justice. Without intending to reflect upon the learned counsel for appellant, we think this objection hypercritical. Having found no error in the judgment, it is affirmed.
Affirmed.
Simkins, J., concurs. Davidson, J., absent.