Fry v. State , 36 Tex. Crim. 582 ( 1896 )

Appellant was convicted of perjury; hence this appeal. There are six distinct assignments in the indictment on which the perjury is predicated, as follows: (1) "It then and there became a material inquiry before the said grand jury, and necessary for the due administration of the criminal laws of said State, whether the said John Fry had seen any person bet or wager at a gaming table or bank, kept or exhibited for the purpose of gaming, in Jim Love's room, in the town of Jacksonville, in the said county and State, within two years before the said 11th day of December, 1893." (2) "Whether the said John Fry had bet or wagered at a gaming table or bank, kept or exhibited for the purpose of gaming, in Jim Love's room, in said town of Jacksonville, in said county and State," etc. (3) "Whether the said John Fry had seen Jim Love keep or exhibit a table or bank, for the purpose of gaming, in the said Jim Love's room, in the said town of Jacksonville, in said county and State, at any time," etc. (4) "Whether the said John Fry had seen any person bet or wager at a game then and there played with dice, called 'craps,' in the said Jim Love's room, in the town of Jacksonville, in the said Cherokee County; * * * said room not then and there being a private residence." (5) "Whether the said John Fry had seen any persons bet or wager at a game with cards called 'monte' in the said Jim Love's room," etc. (6) "Whether the said John Fry had seen any person playing at a game with cards in said Jim Love's room, in the said town of Jacksonville, in said county and State, at any time within two years," etc.; "said room then and there being an outhouse, where people did then and there resort for the purpose of gaming." There was no motion made to quash the indictment, or any assignment of perjury therein contained. However, a motion in arrest of judgment was made, the grounds of the motion being as follows: (1) "Because it does not appear from the face of the indictment that an offense against the law was committed by the defendant;" and (2) "because the offense attempted to be charged in said indictment is not set forth in plain and intelligible words." In the brief of counsel for the appellant, objections were made to all of the assignments of perjury. We pretermit any expression of opinion as to the sufficiency of the last three counts in the indictment, and the testimony supporting the same. We will now consider whether the first three counts are sufficient. The indictment charged that it was necessary and material to know whether "John Fry (appellant) had seen any person bet or wager at a gaming table or bank, kept or exhibited for the purpose of gaming," etc. This allegation is objected to upon the ground that it is in the alternative. Appellant swore that he had not seen any person bet or wager at a gaming table or bank, kept or exhibited for the purpose of gaming, in Jim Love's room, in the town of Jacksonville. If this statement was false and deliberately made, it was perjury. It is not necessary, in order for it to be perjury, that the witness (appellant) should have stated that he had not seen any person wager at a gaming table, etc., or that he had not seen any person bet at a gaming table, etc. When he swore that he had not seen any person bet or wager at a gaming table or bank, he denied as emphatically that he had seen any person bet or wager as if each had been denied separately and distinctly from the other. These observations apply to "table or bank," as well as to "keeping or exhibiting." It is true that, in charging an act in an indictment, the charge must not be in the alternative, but we know of no case or law which would require this rule to be applied in setting forth the statement assigned for perjury. The indictment should set forth what the witness swore substantially as he testified, and if the statement assigned for perjury be material, and was wilfully and knowingly made, it is perjury, whether the statement be in the conjunctive or disjunctive form. We are of opinion that the first three assignments of perjury are sufficient. The question then arises, as there may be three defective assignments of perjury with the three good assignments, whether a general verdict can be sustained. It will be borne in mind that there was no motion to quash either assignment, nor was there any objection urged to evidence tending to support the assignments which are claimed to be defective. Under this state of case, what is the law? Mr. Bishop, in his New Crim. Proc. (Vol. 1, § 1015, Subdiv. 2), says: "On a bad count, mingled with good ones, the court has no right to receive evidence against the defendant's objections. Properly, the ill count should be quashed. If it is not, and the court refuses to exclude evidence applicable only to it, and does not direct the verdict to be limited to the good counts, a general finding of guilty will be set aside." Subdivision 4, "If good and bad counts appear together at the sentence, or, on error, all have been treated at the trial as good, and no objection to evidence having been saved, the case is the same as when any other incompetent evidence was introduced with the defendant's tacit consent. He cannot now complain of it, but can object to being sentenced on a bad count, as is elsewhere shown. Still, treating the bad count as surplusage, he may be sentenced on the good counts. Moreover, a general sentence on good and bad counts is not reversible on a motion in arrest of judgment or on error, if sustained by the good ones." This court has recognized this doctrine in a number of cases. See, Shuman v. State, 34 Tex.Crim. Rep.; English v. State, 29 Tex.Crim. App., 174, and authorities cited. The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.