No. 2584 | Tex. App. | Jan 16, 1889
This is a companion case to that of Albert Wilson v. The State, just decided, and was a prosecution for perjury committed in the same judicial proceeding, and assigned upon the testimony of this defendant given as to the same subject matter. But in this case the errors for which the Wilson case has been reversed have not been committed. In this case the complaint upon which the information in Bean’s case was based was introduced in evidence, and the charge of the court substantially complied with the provisions of article 746, Code Criminal Procedure, relative' to the testimony essential to a conviction. Defendant’s motion to quash the indictment was properly overruled, the indictment being in all essential particulars in substantial compliance with the law and with the approved forms and previous adjudications upon the validity of indictments in such cases. (Penal Code, art. 188; Willson’s Crim. Forms, No. 122 and notes 1 and 2; Willson’s Crim. Stats, sec. 308, and especially under the head “Materiality.”)
ISTo exception appears to have been taken to the charge of the court as given, and it does not appear that defendant’s special requested instructions were either given or refused, there being no indorsement by the judge upon them. Taken as a whole, the achrge, in our opinion, sufficiently submitted the law of the case in regard to the matters complained of, especially in the absence of exceptions as to any particular portion, and in fact it could not be said to be defective, even had such exception been reserved, because in its entirety it presented the law fully and in a manner so that the jury could not'have been misled, to the prejudice of defendant.
As to defendant’s special requested instructions, the rule is: “If requested instructions are ‘given’ or ‘refused,’ they must be authenticated by the judge’s signature; and when nothing indicates that they were refused, it will be presumed on appeal that they were given.” (Willson’s Crim. Stats., secs. 2354, 2355, 2366.) It is true that one of the grounds of defendant’s motion for new trial, and one of the assignments of error, is the refusal of the court to give these special instructions. Suppose this entitled them to consideration as refused instructions, then it appears from said instructions that those which were legal had already been substantially given in and covered by the general charge, and the others, to wit, the third, fourth and sixth, should not have been given because the materiality of the false statement assigned as perjury is a question for the court and not the jury to determine. (Jackson v. The State, 15 Texas Ct. App., 579; Davidson v. The State, 22 Texas Ct. App., 372; Donahoe v. The State, 14 Texas Ct. App., 638; Washington v. The State, 23 Texas Ct. App., 336.) There was no error in refusing said instructions.
The only remaining supposed error is presented in defendant’s bill of exceptions number two, as to remarks made by the district attorney in his closing argument. These remarks were in reply to matters commented upon by defendant’s counsel, and were perfectly legitimate under the circumstances; and, were it otherwise, no harm or prejudice to defendant’s'rights is made to appear on account of said remarks. (Bass v. The State, 16 Texas Ct. App., 62; House v. The State, 19 Texas Ct. App., 227; Pierson v. The State, 18 Texas Ct. App., 524.)
We have failed to find any reversible error in this record, and the judgment is therefore affirmed.
Affirmed.