Kitchen v. State , 26 Tex. Ct. App. 165 ( 1888 )

Hurt, Judge.

This conviction is for perjury. A motion in arrest of judgment was made and overruled, and this is assigned as error. The indictment is in the form prescribed by Judge Willson in his work on Criminal Forms, page 68, with one exception, which relates to the allegation of materiality of the statement upon which perjury is assigned. To this there is no objection urged by counsel for appellants, and if there had been objection upon this ground, it would have been untenable, because this indictment alleges that the matter assigned was material, though not in the form prescribed. This is immaterial to the sufficiency of the indictment. (Bish. Crim. Proc., sec. 921.) We have examined and compared Willson’s form for perjury committed by a witness before a court in a criminal case, with the authorities, and believe it correct; and therefore the objections urged to the indictment are not well taken.

As the indictment charges that the appellant committed perjury upon the trial of a case wherein Berry Milligan and Elmira Jones were defendants charged with the murder of Jesse Jones, it is contended that the court erred in admitting in evidence the judgment acquitting Elmira Jones. The contention is that there is a failure to prove that the perjury was committed on the trial of Berry Milligan and Elmira Jones, that the evidence adduced does not show that Milligan and Jones were being tried, but that Elmira Jones was alone upon trial.

The facts are these: Milligan and Jones were placed upon trial jointly. After the State had closed its testimony, the court directed the acquittal of Jones. The trial proceeded as to Milligan, and in consequence two verdicts and judgments were rendered in the case. The statement assigned for perjury was made by appellant when both defendants were on trial. The allegations in the indictment were therefore- absolutely true.

But it is contended that the record in the murder case must show that the court ordered the acquittal of Jones, and that this can not be shown by oral testimony. There is no law requiring this matter to be made a part of the record, and, if there was, it would not follow that this matter, on a trial for perjury, could not be proved by parol.

It is objected to the charge that- it does not instruct the jury that the false statement must relate to something past or present. Wot so in this case, because there can be no possible question relating to this fact; the statement was evidently relating to a past fact. It would be a very remarkable case which would require the court to mention this matter to the jury. Why? Because the indictment must set forth that the accused made a statement, setting out the statement; it must assign perjury upon the statement alleged, and the statement set out and assigned for perjury, and no other, must be proved.

If, therefore, the statement assigned for perjury does not relate to a present or past fact, the indictment will not support a conviction, let the proof be what it may.

Counsel for appellant objects to the following charge: The jury were authorized to acquit the defendant if they had a reasonable doubt whether the statement made by him were true or false. There was certainly no prejudice to appellant in this.

In the motion for new trial it is contended that the verdict was contrary to the instructions of the court in this, the court had directed an acquittal if the jury had a reasonable doubt as to whether the statement by defendant were true or false. This may be true, but evidently the defendant can not complain of this matter, because the error in the charge was clearly against the State. In McNair v. The State, 14 Texas Court of Appeals, 78, it is not intimated that such a charge as that under discussion, relating to reasonable doubt of the guilt or innocence of the accused, will require a reversal either upon the defect in the charge or because the verdict is contrary to the charge.

Opinion delivered October 13, 1888.

Over objection, the State introduced in evidence an indictment against appellant, charging him with the murder of Jesse Jones, with oral testimony that Berry Milligan was a witness against appellant upon his trial for the murder, counsel for the State explaining that these facts were admissible to show motive for the perjury. In this there was no error.

The record presents serious conflict in the testimony. The State proved by Berry Milligan that he did not make the statement to appellant. Milligan was very strongly corroborated by the testimony of Antone Bishop and Willie Bishop, and by -cogent circumstances. On the other hand, appellant proved by Lucinda McIntyre that Milligan did make, substantially, the statement to the appellant; and by Hosea and North very suspicious circumstances against Milligan. We have alluded to this conflict in the testimony for the purpose of discussing an emission in the charge of the court. Now, while the record of the trial at which the alleged perjury occurred was admissible -as inducement, or for the purpose of showing that the alleged perjury was committed in the trial of the cause, as alleged in the indictment, still such record can not be-used to prove the perjury.

The judgment acquitting Milligan was introduced by the State. This was proper; but, as the appellant’s statement, assigned for perjury, if believed by the jury, would have convicted Milligan,- or was strongly calculated to induce the jury to convict Milligan, it was the duty of the court below, by proper instructions, to have explained to the jury the object or purpose of its admission. The jury should have been told that the judgment of acquittal could not be considered as proof of the perjury, or of the falsity of the statement assigned for perjuny. (See this subject discussed in Davidson v. The State, 22 Texas Ct. App., 372; see also, Long v. The State, 11 Texas Ct., App., 381; McCall v. The State, Id., 353; Kelly v. The State, 18 Texas Ct. App., 262; Littlefield v. The State, 24 Texas Ct. App., 167; Washington v. The State, 23 Texas Ct. App., 336; Maines w. The State, Id., 568.)

This omission was called to the attention of the court, if not at the time the charge of the court was read (this is left in doubt), on the motion for new trial. Nor the omission in the charge, the judgment is reversed and the cause remanded.

Reversed and remanded.