Covey v. State , 23 Tex. Ct. App. 388 ( 1887 )

Willsoh, Judge.

I. It is not essential in an indictment for perjury that the allegation of issue joined shall show specifically what the issue was. If the indictment by its allegations shows that the perjury was committed in a judicial proceeding in a court of competent jurisdiction, and describes the judicial proceedings with reasonable certainty,- it is sufficient to allege in general terms that a certain issue was joined in said proceedings without stating the issue. (2 Archbold’s Crim. Prac. and Plead., 1738; 2.Wharton’s Free., 581, 582a.) In this respect the indictment before us is sufficient.

II. It is alleged in the indictment that the false testimony upon which the perjury is assigned was material to the issue in the judicial proceeding. It does not appear upon the face of the indictment, as contended for by defendant’s counsel, that said alleged false testimony was immaterial. On the contrary, we think its materiality is apparent upon the face of the indictment, and in this particular the indictment is not bad.

III. It is also urged as an objection to the indictment that it charges perjury on a statement made before an examining court, and does not allege whether said statement was oral or written, the law requiring testimony taken before an examining court to be reduced to writing. This objection is, we think, not a good one. If the false statement was oral, and not reduced to writing, it was none the less perjury because not reduced to writing. As alleged in the indictment, the statement upon which perjury is assigned was oral, and whether such statement was reduced to writing, and if so, whether the writing is the best evidence of the said statement, are questions relating to evidence, and not to pleading, and can not be considered in passing upon the sufficiency of the indictment.

We regard the indictment in all respects as a good one, and hold that the court did not err in overruling exceptions to it.

IV. We have carefully examined the record in this case, and have given attention to every objection made by defendant’s counsel to the legality of the conviction, and, without consuming time in the discussion of all the questions presented, we will merely say that we find but one error for which the conviction should be set aside, and that is for the error of overruling defendant’s motion for a new trial upon the ground that the court erred in refusing defendant’s application for continuance of the cause. This application for continuance was, no doubt, refused because, in the opinion of the trial judge, the diligence used by defendant to obtain the testimony of the absent witness, Cole, was not sufficient. We agree with the learned judge in that view; but notwithstanding the application was defective in the showing of diligence, and that the court in passing upon it in the first instance did not err in refusing it, still, if upon the hearing of defendant’s motion for a new trial it appears from the evidence adduced on the trial that the absent testimony is of a material character and probably true, the court may and should grant a new trial. (Shultz v. The State, 20 Texas Ct. App., 315; Tyler v. The State, 13 Texas Ct. App., 205.) And in such case this court will revise the ruling of the trial court where it appears that by the refusal of the continuance the defendant may have sustained injury.

It is not in every case, however, where the absent testimony is material and probably true, that this court would revise the ruling of the trial judge. It is only in a case where, from the evidence adduced on the trial, we would be impressed with the conviction, not merely that the defendant might possibly have been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony had been before a jury a verdict more favorable to the defendant would have resulted.

Such a case is, we think, the one we are considering. There can be no question but that the facts expected to be proved by the witness Cole are of a material character, and, when viewed with reference to the evidence adduced on the trial, they must be considered as probably true. If the testimony of this witness, as it is set forth in the application for continuance, had been before the jury, and had been credited by the jury, it is reasonably probable, to our minds, that the defendant would not have been convicted.

It must not be overlooked, in considering this matter that the two principal State’s witnesses, Lee and his daughter, had strong inducements to fasten the crime of perj ury upon this defendant, for by so doing they would exculpate themselves from the charge of incest. It is also to be noted that the character of Lee, the father, for truth and veracity, was strongly impeached, several witnesses testifying that his general reputation in that respect was bad.

In view of all the facts as they appeared to the court on the hearing of the motion for a new trial, and as they appear in the record before us, we are of the opinion that the defendant was and is entitled to a new trial, and the judgment is reversed and the cause remanded that he may obtain and have the benefit of the testimony of the absent witness Cole.

Opinion delivered May 21, 1887.

Reversed and remanded.