Wilson v. State, No. 2532

No. 2532 | Tex. App. | Jan 16, 1889

White, Presiding Judge.

In all cases of prosecution for perjury committed in a judicial proceeding, it must be made to appear by the allegations of the indictment that the court had jurisdiction of the judicial proceedings (Willson’s Crim. Stats., sec, 307), and it is equally important and necessary that the evidence should sustain the allegation in order to warrant a conviction. It was alleged in the indictment in this case that the judicial proceeding was a trial in the county court “'wherein one Bean was duly and legally charged by information” with unlawfully carrying on or about his person a pistol, etc. To sustain this allegation the prosecution simply introduced in evidence the information. This was not sufficient. An information can not be presented until oath has been made by some credible person charging the defendant with an offense. (Code Crim. Proc., art. 431.) This oath is called a complaint. It is the basis and foundation upon which the information rests, and is a necessary part of, and must be filed with, the information. (Code Crim. Proc., art. 36.) "V^ithout a complaint an information would be wholly invalid—would confer no jurisdiction upon the court, and would be worthless for any purpose. (Willson’s Crim. Stats., sec. 1999.) It follows, then, that in order to sustain an allegation of judicial proceeding by information, not only must such information be introduced in evidence but the complaint upon which it is based- or founded, must be also introduced.

Another error, fundamental in character, appears upon this record. It is a fatal omission in the charge of the court to the jury. An express provision of our statute with regard to perjury and false swearing is that “in trials for perjury no person shall be convicted except upon the testimony of two credible witnesses, or one credible witness corroborated strongly by other evidence, as to the falsity of the defendant’s statement under oath, or upon his own confession in open court.” (Code Crim. Proc., art. 746; Hernandez v. The State, 18 Texas Ct. App., 134; Anderson v. The State, 24 Texas Ct. App., 106; Maines v. The State, 36 Texas Ct. App., 14.)

Article 746, as thus quoted, is as much a part of the law of perjury as qny other found in our Penal Code relative to that crime, and where the accused has not confessed his guilt in open court, that article, or the substance thereof, should he given in charge to the jury, it being imperative in felony cases that the charge “shall distinctly set forth the law applicable to the-case, whether asked or not.” (Code Crim. Proc., art. 677.) It is fundamental error to fail to give such instruction. (Washington v. The State, 22 Texas Ct. App., 26; Gartman v. The State, 16 Texas Ct. App., 215; Willson’s Crim. Stats., sec. 312.)

Opinion delivered January 16, 1889.

“A credible witness,” as used in that article, means “one who, being competent to give evidence, is worthy of belief.” (Smith v. The State, 22 Texas Ct. App., 197.)

For the errors discussed, the judgment is reversed and' the cause remanded.

Reversed and remanded.