Garrett v. State , 37 Tex. Crim. 198 ( 1897 )

This case was affirmed at a former day of this term, and now comes before us on motion for rehearing. We have examined the motion of the appellant, and, in the view we take, there is nothing in the questions presented by him, except as to that part of the opinion of this court holding that, although no plea of non est factum was contained in the record proceedings of the trial court, yet we would presume that the testimony of the witness to the effect that he had not signed the note sued on was material; that is, that we would assume that said testimony was delivered upon a proper defense set up in the court in which the civil case was tried, notwithstanding the record did not contain such defense. Appellant insists that the view taken by this court was erroneous, and we have been constrained to give this question a more careful consideration, examining all of the cases on the subject which were accessible. The assignment upon which the perjury was predicated in this case was to the effect that in a certain civil proceeding in a certain justice court, one J.T. Floyd brought suit against W.H. Garrett (defendant) on a certain note for $20, setting out said note in hæc verba, showing that the same was signed by W.H. Garrett, and further alleging that issue was then and there duly joined between said plaintiff and defendant, and that said defendant was duly sworn as a witness in said case, and it then and there became and was a material inquiry before the said court, etc., whether the said note was signed and executed by the said W.H. Garrett, and then charging the said Garrett wilfully, deliberately, etc., testified that he did not sign the name W.H. Garrett, which appears as the signature to said note, and that he did not execute the same, which said statement was material to the issue in said case; and whereas, in truth and in fact, said Garrett did sign said note, etc. The authorities require that the indictment shall show the materiality of the alleged false testimony, or shall allege that the same was material; and in either event, as we understand it, the facts must be proved which show the materiality of the alleged false testimony. If the assignment is based on false testimony delivered in a judicial proceeding, so much of the record in that proceeding must be shown as to authorize the court to declare that the testimony alleged to be false was material to some issue in the case. Mr. Bishop says: "The allegation of materiality must also be proved. It is not enough that the testimony was actually admitted; yet it suffices that the indictment sets out the facts whence the materiality judicially appears. Where it does not, the course is to prove all or so much less than all of the pleadings and evidence brought forward at the former trial as will duly present the question; whereupon the court, not the jury, will decide, as of law, whether or not what the defendant is shown to have testified to therein was material." See, 2 Bishop's New Crim. Proc., § 935. Our own court has followed the principle here laid down. See, Lawrence v. State, 2 Tex.Crim. App., 479, and Wilson v. State, 27 Tex.Crim. App., 47. In this case no plea of non est factum or plea denying the execution of the note sued on by plaintiff was shown in evidence. In our former opinion we presumed, in favor of the regularity of the action of the court in the admission of the testimony of the nonexecution of the note, that there was such a plea; that is, that the issue was properly made before the justice of the peace in the trial of said civil case, and that he acted properly in admitting the testimony of the defendant to the effect that he did not execute said note. But, on reconsideration of this question, we believe we were in error. The materiality of the testimony must be shown by evidence; and, in the absence of an issue joined in the trial court that would render the testimony material, there could be no predicate upon which to base an accusation of perjury. Under our statutes, as construed by the Supreme Court, an issue as to the nonexecution of a note sued on can only be raised by a plea denying the execution of said note, verified by affidavit. This, as we understand it, is the only mode by which the issue of the nonexecution of the note sued on can be made. Unless such affidavit is made, the production of the note affords full proof of the fact of its execution, and cannot be denied or disputed by the defendant. The authorities go to the extent of treating a plea denying the execution of a note sued on, which is not sworn to, as a nullity. See, Drew v. Harrison, 12 Tex. 279 [12 Tex. 279]; Grounds v. Sloan, 73 Tex. 662. Both above cases are directly in point; and also, see, Bradford v. Taylor, 61 Tex. 508; Waterworks v. White, id., 536; Loan Co. v. Nall (Tex. Civ. App.), 36 S.W. Rep., 322. In such case, where the suit is on a note alleged to be executed by the defendant, and no affidavit of its nonexecution is filed in said case, as required by our statute, then there is no issue as to the execution of said note; no defense is presented as to its execution; and any testimony upon this subject is inadmissible, and will not afford a defense to plaintiff's action on the note. In accordance with the views above expressed, we hold that, the record failing to show that a plea of non est factum was made and presented by the defendant in said civil suit, we cannot presume against the defendant that such a plea was filed. In the absence of such matter of defense, it is our opinion that the evidence adduced fails to show that the alleged false testimony of the defendant became material; that is, that, the State having failed to show that the plea of non est factum was filed in said civil suit, the fact that appellant swore on the trial thereof that he did not execute said note is not shown to have been material to any issue in the case. For the reasons indicated, the rehearing is granted, and the judgment is reversed, and the cause remanded.

Reversed and Remanded.