Cordway v. State , 25 Tex. Ct. App. 405 ( 1888 )

Willson, Judge.

I. All the witnesses named in the application for continuance, except two, were present and testified on the trial. As to the two absent witnesses, the application fails to show sufficient diligence to obtain their testimony. There was, therefore, no error in refusing to grant the application.

II. Defendant’s testimony taken before the jury of inquest, and also his statements made to the witness Hubbard, were admissible, as tending to show the falsity of the statements upon which the perjury is assigned. They were circumstances pertinent to the issue on trial, and throwing light upon it, and in our opinion were strongly corroborative of other testimony of the State. As to the parol testimony of the defendant’s statements made before the jury of inquest, it did not contradict or vary said statements as reduced to writing and signed and sworn to by the defendant, and could not possibly have injured the defendant.

III. It was not error to reject the proposed testimony of the witness McMullen, as to other statements made by the' defendant. We know of no rule of evidence under whicíi such statements would be admissible in behalf of the defendant.

IV. There is no fundamental error in the charge of the court, and if it be erroneous in any respect, the error is not of a character that could be regarded as injurious to the defendant’s rights. There was a general exception made to the charge of the court, no error therein being specifically pointed out, and such exception can not be considered. (Williams v. The State, 22 Texas Ct. App., 497.

V. A bill of exception was reserved by the defendant to certain remarks made by the district attorney in his closing address to the jury. The remarks complained of were in response to an argument used by the defendant’s counsel, and were, we think, justified thereby.

VI. A question of importance, and not before directly adjudicated in this State, or in any other State that we are aware of, is presented in defendant’s motion for new trial, and in his motion in arrest of judgment. The facts upon which this question arises are briefly stated as follows: The perjury for which the defendant stands convicted was committed on a trial of the case of the State v. Juan Coy, charged with the murder of one Jackson. After killing Jackson, Coy killed one Elder, in Karnes county, and fled into Mexico. He was extradited from Mexico for the murder of Elder, but not for the murder of Jackson. After being extradited for the Elder murder, he was indicted for the Jackson murder, and put upon trial therefor, and upon said trial the alleged perjury by the defendant was committed. Said trial resulted in a mistrial. Coy did not interpose, upon said trial, any plea or objection to the jurisdiction of the court, but some time thereafter he sued out the writ of habeas corpus, based upon the ground that he had not been extradited for the murder of Jackson, and was therefore illegally restrained of his liberty upon said charge. Upon the hearing of said writ, it was adjudged that the district court of Wilson county had no jurisdiction to try him for the murder of Jackson, and he was discharged from restraint under that charge.

It is claimed by defendant, upon this state of facts, that, ag the district court of Wilson county had no jurisdiction to try Coy for the murder of Jackson, the defendant could not commit legal perjury on that trial. In an able and exhaustive brief by 'the Assistant Attorney General, this proposition is, we think, successfully and conclusively answered. We shall not enter upon an extended discussion of the question, but merely state our conclusions upon it, which, we think, are well supported by both reason and authority. Our conclusions are:

1. The district court of Wilson county had jurisdiction of the subject matter of prosecution against Coy; that is, the offense of murder.

2. It did not have jurisdiction over his person to try him for said murder, because he had not been extradited for that particular murder.

3. Jurisdiction over the person, unlike jurisdiction over the subject matter, is a matter with respect to which only the person over whom the jurisdiction is being or sought to be exercised has or can have any concern. It can be denied or objected to by no one else. It may be waived by him, as he may waive any other right except that of trial by jury in a felony case.

4. If such person submits to the jurisdiction of the court over his person; if he makes no objection to being tried by the court, he waives his privilege, whatsoever it may be, and so long as he does not assert such privilege and challenge such jurisdiction, the court may proceed legally to try him, and in such case the proceedings had against him are not void, but in any event are merely voidable, and voidable only at the instance of the person entitled to the privilege, and can not be called in question by any other person.

We hold, therefore, that the trial of Coy for the murder of Jackson, upon which trial the alleged perjury was committed, was a legal and not a void proceeding, and that the court in which said trial was had was a court of competent jurisdiction for all the purposes of this case.

With respect to the sufficiency of the evidence to sustain the conviction, we are not prepared to say that it does not fill the full measure of the law, though there is some conflict in it, and in some respects it is not as clear and satisfactory as it should and perhaps could have been made. The credibility of the witnesses was a matter exclusively for the jury to determine, and the jury having believed the testimony of the State's witnesses, the guilt of the defendant can not be questioned.

The judgment is affirmed.

Affirmed.

[This opinion was delivered at the Galveston branch of the court, March 7, 1888. The appellant’s motion for rehearing, which was subsequently filed, was taken under advisement and transferred to the Austin branch, where it was decided by the opinion which follows.—Reporters.]