Simpson v. State , 46 Tex. Crim. 77 ( 1904 )

The indictment charges appellant with perjury in that he made a false affidavit before a justice of the peace charging one Oliver with having committed an assault upon him. The affidavit was the beginning of the criminal prosecution against Oliver, and was a sufficient predicate for perjury. Langford v. State, 9 Texas Crim. App., 283. It is contended the indictment is defective in that it fails to set out the affidavit in haec verba. This contention is not correct. Gabrielsky v. State, 13 Texas Crim. App., 428. It was not necessary under the facts to set out in full the affidavit, nor the number and style of the case. As before stated, this was an affidavit made as the beginning or basis of a prosecution for assault. There was at the time no trial of the case but simply the making of the affidavit. In fact, there could be no style or number of the case until the affidavit had been made.

While the witness Scarborough was a witness in behalf of the State he was permitted to testify that appellant swore before J.W. Barry, justice of the peace, that O. Oliver pointed his pistol at him, the said Ranse Simpson, and told him that he, Oliver, would blow his God-damn brains out. Objection was urged because it was irrelevant and secondary evidence of the contents of the affidavit upon which the prosecution was predicated. The bill is qualified with the statement that the affidavit had been already proved and admitted in evidence, and this witness was testifying to the fact that appellant was sworn and made the above statement, which substantially appears in the affidavit. The evidence shows appellant made this statement in detailing the facts to the justice of the peace which formed the predicate of the complaint taken. It was a part and parcel of the transaction and res, gestæ; the statements made and uttered at the same time with those contained in the affidavit and those charging the perjury. We are referred, in support of appellant's proposition, to Brown v. State, 48 S.W. Rep., 169. That case is not applicable. In the case at bar there were several assignments of perjury; in the Brown case there was but one, and it was held, that before the conviction for perjury could be had, the entire assignment must be proved as laid. Where there are several assignments of perjury, a conviction may be predicated upon either, and it is not necessary to prove the others. The court, submitting this case to the jury, selected one averment and discarded the others. The particular language introduced from the witness was not assigned as perjury. But, as before stated, it was a part and parcel of the same conversation and was res gestæ. It was not secondary evidence.

The witness Hollas, deputy sheriff, who was present at the time the affidavit was made, was permitted to testify that appellant swore Oliver pointed his pistol at him, and threatened his life. This is practically the same question as the one just discussed.

It is contended the evidence is not sufficient to justify the conviction. Oliver was constable. Armed with a writ of execution, he went to appellant's house for the purpose of serving it on him, and taking some property situated in appellant's house mentioned in the process. There were some words between the parties, and finally the officer stepped upon the gallery, and appellant seized an ax. The officer placed his foot upon it, and drew his pistol. There is some conflict in the evidence as to what occurred at this juncture. Some witnesses testified the officer pulled his pistol, but did not raise it or point it at appellant, but held it in his hand down by his side or leg. Appellant's evidence indicates that he partially raised the pistol. The issue of perjury was submitted upon the statement of appellant that the officer pointed the pistol at appellant. The majority of the witnesses testify that this did not occur. If it did not occur, this averment of perjury was fully substantiated. The jury decided the conflict. Finding no error in the record, the judgment is affirmed.

Affirmed.