41 Tex. 67 | Tex. | 1874
The appellee was indicted in the District Court of Matagorda county at the June Term, 1873, charged with having, on the 10th of October, 1872, committed “willful and corrupt perjury” in “the case of the State of Texas v. Leander Hunt, charged with disturbing religious worship at Caney church,” and that the said Ellis Webb, being then and there duly sworn, &c., * * * did then and there willfully, knowingly, corruptly, and falsely state under oath * * * that he was present at Caney church, and distinctly heard the said Leander Hunt say in an audible tone of voice, “ God damn you, give me the cup.”
There was a trial at the February Term, 1874, a verdict of guilty as charged in the indictment, a motion for a new trial, which was overruled, and a motion in arrest of judgment made by defendant. The court sustained the motion in arrest of judgment and dismissed the case. The District Attorney appealed, and has brought the cause for revision to this court.
In the case of the State v. Juaraqui, 28 Tex., 626, this court declared that “ ihe indictment ought to charge that the defendant deliberately and willfully swore falsely,” and that the words falsely, wickedly, willfully, and corruptly, being matters of deduction from previous averments, cannot supply the want of averments essential to the proper and legal description of the offense, and reversed the judg
The indictment before us is likewise defective in this, that it fails to state that any indictment had been found against the parties on trial for disturbing the worshippers in “ Caney church,” or that the court had cognizance of the offense by reason of its being committed within the limits of Matagorda county, or that it was one over which the court had jurisdiction. This the indictment should have stated, and this it failed to do.
In the case of State of North Carolina v. Gallimore, 2 Ired., 374, 375, the indictment, charging the accused with perjury under a statute similar to ours, set forth with minuteness, and at considerable length, the style of the count, the names of the presiding judges, their authority to administer the oath, the character of the offense charged, and the taking of the oath, and its exact language, and the falsity and materiality of the words uttered. The court, in reviewing the case, declared: “The objection to the indictment is, that it does not distinctly and certainly set forth the facts, which show that the alleged false oath was taken in a judicial proceeding, before a court having jurisdiction thereof. It is a general rule that every indictment should charge explicitly all the facts and circumstances which constitute the crime, so that on the face of the indictment the court can with certainty see that the in dicto rs have proceeded upon sufficient premises.” According to this rule, the court said that the indictment charging perjury should have averred, as a fact, the finding an indictment in the County Court against the defendant in the former case, and should have set forth that indictment,- or so much thereof as to show that it charged an offense committed within that county, and of which said court had
The defects in the indictment authorized the court to sustain the motion in arrest of judgment, and this opinion, ordinarily, should close with an affirmance of the judgment. This cause, however, presents some features, clearly shown in the statement of facts and motion for a new trial, which authorize, if they do not demand, an expression of opinion from the court on the features thus presented.
The defendant, Ellis Webb, was indicted for having committed perjury on the trial of Leander Hunt for disturbing religious worship in Caney church. The false swearing or perjury was charged to have been committed by defendant swearing falsely that he distinctly heard Leander Hunt say, in an audible tone of voice, “ God damn you, give me the cup.” Hunt and two others had been indicted two years before the present trial for the disturbance, and were fined in the sum of ten dollars. These three were the principal witnesses for the prosecution on the trial of the defendant,
This is all the material evidence in the ease. The judge, in his charge to the jury, informed them that, “if you believe from the evidence that the defendant did testify, as charged, and that the acts of disturbance testified to by him were in connection with other matters that disturbed said congregation, then you are to regard the matter as testified to as materia], it matters not how many acts of disturbance there may have been.”
This portion of the charge failed to present the law applicable to the case. It, in effect, told the jury that, provided the matters testified by the accused had any connection with the acts of disturbance charged against Hunt, then it was their duty to consider the evidence as material, no matter how trivial and immaterial such evidence might be, in its very nature, essence, and universal acceptation.
Taking this portion of the charge in connection with the refusal of the presiding judge to give the instruction asked by defendant’s counsel, “ that the false statement must be proven to have been upon a matter material to the issue,” and it will be readily perceived, by an examination of the evidence, that the charge worked great injury to the accused, and the refusal to give the instruction asked by the defendant was error.
The overruling defendant’s motion for a new trial, when the evidence and the charge of the court are considered in connection with the alfidavits filed, is another instance of
The evidence as recited shows that the three convicted disturbers of religious worship were the principal witnesses for the State.
The evidence of the principal in this disturbance (Hunt) admitted that he had taken a drink or two in the church, but knew what occurred. His two associates say they did not hear him swear, but admit that he obtained the bottle from one, and the vessel or cup, used as a spittoon, from another; and that he drank from it while the congregation were in the act of prayer. One of these associates admits that Hunt asked him for something to drink, and heard him damn, but not above a whisper. Other witnesses testified to the disturbance; the ladies leaving their seats; the cursing and swearing by Hunt; the fact that he was tolerably drunk; that he cursed and threatened to assault and beat a witness in the church, who requested him to hush. It was shown that Hunt did make a disturbance in the church; that he was drinking and cursing, and carrying on there. Under all the aspects of the case, it was the duty of the District Judge to have granted a now trial, and particularly so when his attention was specially called to the character of the principal witness for the State, and other facts which were embraced in the affidavits of ten respectable citizens of Matagorda county. We do not intend to be understood as saying thattho affidavits attached to a motion for a new trial, which impeach the character of the witnesses, should be compulsory in their character on the mind of the judge in granting a new trial; but the affidavits in the present case were of that character that should have required a careful consideration of the whole cause, the result of which should have been the granting a new trial to the accused.
While the enforcement of the criminal law is absolutely demanded, for the protection of private and public rights,
The judgment is affirmed.
Aeeirmed.