Smith v. StateSmith v. State
- Reporters:
- , ,
- Before:
- White
Appellant’s plea of former jeopardy was prоperly overruled and stricken out, it appearing from the face of said plea that the jury on the former trial, whiсh had been discharged over objection of defendant, were not discharged until after they had been out considering of their verdict in the case for two days, and that then they wеre discharged because it appeared that thеy had been kept together for such a time as to rendеr it altogether improbable that they could agree. In discharging them, under the circumstances, the court, in our opiniоn, did not abuse its discretion. (Code Crim. Proc., Art. 701; Powell v. The State, 17 Texas Ct. App., 346; Schindler v. The State, Id., 408: Varner v. The State, 20 Texas Ct. App., 107; Pizano v. The State, Id., 139.)
Appеllant was tried and convicted for perjury. The two witnesses against him were George Thompson and his wife. *200George Thomрson was impeached in two ways: First, by proving contradictоry statements made by him to what he swore as a witness; and, seсond, by proof that his general reputation for veracity was bad. Besides this, his testimony was contradicted in some pаrticulars by his wife, and in some particulars by the witness Bullían. Besides this, his оwn testimony showed him to have been an accompliсe in the theft of Bullian’s hog, the theft of which caused the prоsecution, in which defendant was charged to have committed perjury. There was no evidence strongly corrobоrating the testimony of George Thompson and his wife as to the perjury committed by this defendant. (Gabrielsky v. The State, 13 Texas Ct. App., 428; Hernandez v. The State, 18 Texas Ct. App., 135.) Now, it is expressly provided by statute that “in trials for perjury no person shall be convicted, except upon the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence as to the falsity of defendаnt’s statements under oath, or upon his own confession in oрen court.” (Code Crim. Proc., Art. 746; Gartman v. The State, 16 Texas Ct. App., 215; Anderson v. The State, 20 Texas Ct. App., 312.)
Mr. Bouvier, in his Law Dictionary, dеfines a credible witness to be “one who, being compеtent to give evidence, is worthy of belief.” Was the witness Geоrge Thompson such a witness? This was a question of fact to be determined by the jury under appropriate instructions from thе court. The general charge did not give them such an instructiоn. Defendant requested two special instructions which in our оpinion, under the facts in this case, it was error to refuse. Thеy were: “1. If from the evidence the jury believe that Georgе Thompson is not a credible witness, they must disregard the whole оf his testimony. 2. A credible witness is one whose character for truth is above reproach. If the jury find from the evidence that the witness George Thompson is not a credible witness, they must disrеgard his testimony.” As stated above, .there being but the two witnesses as to the perjury, and George Thompson having been impeached, the instructions were called for by the facts.
For error in refusing defendant’s special instructions, the judgment is reversed and the cause remanded.
Reversed and remanded.