Luna v. State , 44 Tex. Crim. 482 ( 1903 )

DAVIDSON, Presiding Judge.

Appellant was convicted of perjury, and his punishment assessed at confinement in the penitentiary for a term of two years.

The indictment was attacked in several particulars. Without entering into a discussion of the various questions assigned, we are of opinion after a careful examination, that it is sufficient.

It is urged that the court’s charge is fatally eroneous, in submitting the question of the materiality of the evidence to the jury, as a fact to be determined by them. We believe this exception is well taken. The materiality of testimony upon which perjury is assigned usually is a question for the court, and not the jury. While it may be true that it might be a mixed question of law and fact in some cases, this is not true as to the case before us.

Appellant tendered a special instruction to the court, in which he requested the submission of his theory; that is, if they should find he believed at the time he made the affidavit that the statements were true, he should be acquitted. Under the facts, this charge should have been given.

He further requested the jury be charged that, if defendant believed he had. reasonable grounds upon which to predicate the affidavit that Tom Horn and Virgil Hazlewood took his money, they should acquit. A few facts might be stated, to show that this charge should have been given. Milner testified: That in going out from town in a wagon with defendant and Hazlewood, defendant proposed that Hazlewood and Milner should assist him in concocting a scheme by which they would get a couple of fine mares from Horn; that appellant on the following day should put' $110 in his pocket, and go to the residence of his stepson, Stevens, and display this money, and pretend to be very drunk, then take Horn riding, and thereafter deliver the money to his wife, and bring an accusation against Horn, charging him with theft of the money. Defendant was then to obtain, as a compromise with Horn, the mares; appellant paying Milner $25, and Hazlewood $10, for their aid and assistance in the execution of the scheme. Appellant went to Stevens, and subsequently took Horn riding, and was either very drunk or pretended to be so. That Horn went with appellant to appellant’s residence, and Hazlewood assisted him in carrying appellant into the house, where they placed him on the bed. During the night, appellant waked up about 3 o’clock in the morning, and discovered his money was gone. He immediately woke his wife and made inquiry of her in regard to it, as well as of Hazlewood, who was sleeping in the house. Hazlewood and Horn were tenants of appellant. Appellant began to inquire about his money; instituted search and investigation early in the morning, after he missed it at night. Horn went to Hazlewood and told him that the elder Milner intended prosecuting him (Hazlewood) for disturbing the peace, and advised him to leave the country. Appellant’s son and appellant instituted investigation as to whether the elder Milner had instituted proceedings against Hazlewood, and discovered that to be false. Appellant’s son went to Hazlewood about the matter, and Hazlewood promised to see the elder Milner and make inquiries himself, started in that direction, was gone a short while, and returned. Becoming suspicious, the younger Luna followed the tracks of Hazlewood, and discovered that he did not go to see Milner about the matter, and so informed him. Hazlewood admitted that he did not, and further stated that Horn had gotten him into all this trouble, and he that was going down in the field and “whip hell out of him,” and, pointing to Horn’s house, said, “He has gotten me into all this trouble, and he now has your father’s money in his house.” Hazle wood fled the country. These are the circumstances' that induced appellant to make the affidavit charging Horn and Hazlewood with the theft of his money, and asking for a search warrant. Hnder this state of case, the charges requested by appellant should have been given.

Appellant offered to prove by Hazlewood that he made an assault upon witness with a knife, and told witness, if he (defendant) knew that he (Hazlewood) had gotten his (defendant’s) money, he would cut witness’ throat; that^ on account of said threats, Hazlewood left the country. This testimony should have been admitted. The State predicated perjury upon the fact that he charged Horn and Hazlewood with the theft of the money. It is always a question, upon a trial for perjury, whether the statements were willfully and falsely made. If defendant had reason to believe Hazlewood and Horn—either or both— got his money, the falsity of the testimony against him might be met by this as a circumstance in his favor. This testimony, occurring the following morning after he missed his money at night, went to show the condition of defendant’s mind, and his belief in regard to what became of his money.

Another bill shows that after Horn had testified that he went into the field where Hazlewood was at work, and told Hazlewood that Milner was going to prosecute him for disturbance of the peace, defendant offered to prove that on the evening of the same day Horn again went to Hazlewood, where he (Hazlewood) was at work in the field, and told him that he (Hazlewood) was a single man, and ought to leave the country before said Milner indicted him for disturbing the peace on June 1, 1901, and that said Horn then and there advised Hazlewood to leave the country. The first conversation, which was admitted, was of the same character, but not so extended, as the latter. This testimony, if true, shows that Horn was trying to induce Hazlewood to leave the country, and was a circumstance, connected with the other circumstances, which would tend to prove appellant’s theory that Hazlewood and Horn were acting together, and suggested to appellant the belief that they got his money; and it should have been admitted. These facts were known to appellant when he made the affidavit.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.