Maines v. State , 26 Tex. Ct. App. 14 ( 1888 )

Hurt, Judge.

This conviction is for perjury. Court met off the third day of January, 1888. This case was set down to be tried on the ninth day of February, 1888, and was called for trial on the tenth of said month.

The subpoena was served on Mrs. Wyers on the thirty-first; day of January, 1888. Application to continue because of the absence of Mrs. Emma Wyers, was presented and overruled, defendant reserving his bill of exceptions. While not perfect, the diligence used to procure the attendance of the witness was sufficient.

The testimony of Barlow and Reed, witnesses for the State, rendered the evidence of Mrs. Wyers material, and, as this is a case depending alone upon circumstantial evidence for conviction, we think a new trial should have been granted to procure the testimony of Mrs. Wyers.

Counsel for appellant seriously insists that perjury can not be established by circumstantial evidence alone; that there must be at least one witness swearing positively to the falsity of the matter assigned for perjury.

Upon this subject our code provides that “ In trials for perjury, no person shall be convicted except upon the testimony of two credible witnesses, or of 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.)

Mr. Wharton says: “ The old text writers, adopting the then current distinction between circumstantial and direct testimony, held that, to convict a witness of perjury, it was necessary that the falsity of his sworn statement should be testified to by two ‘direct’ witnesses. In view of the fact, however, that all testimony is now considered more or jess circumstantial, this rule can be no longer regarded as operative; and we may view it as settled that whenever the falsity of the defendant’s statement can be proved ‘beyond reasonable doubt, then there may be a conviction.” (Crim. Ev., sec. 387.)

Mr. Bishop says: “The testimony alleged to be perjured having been delivered under oath, such oath, as well as that of the contradicting witness, should be regarded on the trial for the perjury; and where the evidence thus received presents •only oath against oath it will be insufficient. Therefore, the old doctrine was that two witnesses directly contradicting what the defendant testified to, are indispensable to a conviction for perjury.' But, evidently, where there is but one witness to this main fact, there may be something in the case, or brought forward by a witness who can not speak to the main fact, indicating with reliable distinctness which of the two contradictory oaths is false. Hence, by the modern rule, it is sufficient either that there are two witnesses, or that the testimony of the one witness is corroborated or sustained by other facts appearing in the case, or testified to by other witnesses.”

Our Code of Criminal Procedure (art. 746) evidently clings to the views of the old text writers as modified, and holds that if the perjury is not confessed in open court the falsity of the ■statement assigned for perjury must be proved by the positive, direct testimony of two witnesses, or by the direct, positive testimony of one witness corroborated strongly by other evidence (evidently circumstantial).

Opinion delivered June 27, 1888.

Now there may be evidence techically circumstantial which would be amply sufficient under our Code to establish perjury. Let us illustrate: B is on trial for the murder of A. C swears-that he was at a certain time at a certain place in Travis county, Texas; that B and A were present at that time and place, and that no other person was present; that he saw B shoot and kill A, giving the circumstances. B is convicted and executed. Subsequent facts lead to the conclusion that C perjured himself, and he is indicted for that offense. Upon the trial it is evident that the prosecution can not adduce direct evidence against C, but by one or more witnesses it can be shown that he was, at the time of the homicide, and on the day of the homicide specified by him, in the city of New York.

Now, technically speaking, this would be circumstantial evidence, but of such character as to be virtually positive or direct evidence. There would be no room for inferences or presumptions, for, if the jury believed the witnesses, guilt would result without any process of reasoning or presumptions. The record in this case, however, presents no such evidence as the illustration.

We are of opinion that the position of counsel for appellant is well taken under the facts of this case, and that the State-has not adduced upon the trial that character or quality of evidence which is required to convict of perjury.

The judgment is reversed and the cause remanded.

Reversed and remanded.