Davis v. State , 107 Tex. Crim. 389 ( 1925 )

Appellant was convicted in the Criminal District Court of Williamson County for perjury, and his punishment assessed at two years in the penitentiary.

Briefly stated, the record discloses the facts to be, as contended by the state, that the prosecuting witness, R. W. Burleson, on April 1, 1923, and prior thereto was rooming and boarding with Mrs. Fannie Campbell in the town of Weir, in said county, and prior to said April 1, the appellant while in an automobile with two other men drove up to the house of Mrs. Campbell, called the said Burleson out and appellant accused him with having improper relations with Mrs. Campbell, stating: "We have investigated and find that you are living in adultery with Mrs. Campbell; if this be so, it must be stopped," which was denied by said witness, and appellant then delivered to said witness a written notice upon Klan stationery, headed "Georgetown Klan 178, K. K. K.," with the impress of the Klan seal thereon, and immediately drove away. About a week thereafter, said witness had a conversation with said defendant about delivering said notice to him in which the defendant asked him if he had an eye-witness as to his being the man who delivered said notice. On April 1 thereafter said witness was taken from an automobile by five or six men, who beat him over the head with pistols, put a sack over his head, carried him off a short distance and beat him up. While all of this was in progress they asked said witness about the Ku Klux he was going to kill, about the conversation had at the time said notice was delivered to him, and if he stayed at Mrs. Campbell's after receiving said notice. The record further shows that the contended relationship of said witness and Mrs. Campbell was discussed at the meeting of said Klan or just after same was closed prior to said April 1, when someone asked what was going to be done about that matter, and appellant replied he would attend to that or see to it. Thereafter the grand jury, while investigating charges against Jackson, Gossett, Ball, Hewlett and Threadgill for said assault upon said witness, had the defendant before them and interrogated him under oath about said conversations with, and delivering of said notice to said prosecuting witness, in said town of Weir, all of which he denied doing or having any knowledge thereof and being at said place; and upon his said testimony, before said grand jury he was indicted for perjury, and convicted therefor. The appellant did not testify and produced no testimony except testimony showing or tending to show he was not present at the place of the assault, but at said time preaching at another and different place. The above is a sufficient statement of the facts for a discussion of the questions of law brought before this court for review.

The first complaint made by appellant in this court, is the refusal of the trial court to quash the indictment, for sixteen reasons set out in said motion, but from his brief we are led to believe, the main objection relied upon, was alleged error in counts one and three thereof, being the only counts submitted to the jury, contending it was not alleged to be a material inquiry before said grand jury whether defendant delivered the notice in question and had the conversation with said Burleson on April 1, 1923, in town of Weir, and that same was not a material inquiry, and showed no connection with the said alleged assault. The indictment, counts one and three, covering the allegations complained of are, in part, as follows:

"Whereupon it then and there became and was a material inquiry before said grand jury and necessary for the due administration of the criminal laws of said state and for the ends of public justice, whether, in the County of Williamson, and State of Texas, on or about the 1st day of April, A.D. 1923. Murray Jackson, Olen Gossett, Dewey Ball, R. A. Hewlett and Sam Threadgill, who stood charged by complaints duly made and filed on the 4th day of April, A.D. 1923, before the proper tribunal, with the offense of an assault with a prohibited weapon, in fact whether Murray Jackson, Olen Gossett, Dewey Ball, R. A. Hewlett and Sam Threadgill, and whether either of them did, on or about the 1st day of April, A.D. 1923, in Williamson County, Texas, unlawfully commit an assault and battery in and upon R. W. Burleson with pistols, while the said pistols were being unlawfully carried on and about their persons by the said Murray Jackson, Olen Gossett, Dewey Ball, R. A. Hewlett and Sam Threadgill, and the said Murray Jackson, Olen Gossett, Dewey Ball, R. A. Hewlett and Sam Threadgill did then and there therewith and thereby beat, strike, wound and bruise the said R. W. Burleson, and did therewith and thereby inflict serious bodily injury upon the said R. W. Burleson, as charged in said complaints. * * * And it became and was then and there a material inquiry in said investigation before and by said grand jury whether at the time of the alleged assault upon the said R. W. Burleson, he, the said R. W. Burleson, was asked if he stayed at Mrs. Campbell's after he received a notice, and to said material investigation and to said material inquiry it became and was then and there a material inquiry in said investigation whether the said A. A. Davis on or about the 16th day of January, A.D. 1923, went to Weir, a place in Williamson County, Texas, and had a conversation with R. W. Burleson and delivered to R. W. Burleson a piece of paper on which were in substance, the words, 'Georgetown Klan No. 178 K. K. K.,' and on which paper the imprint of a seal had been made, and whether at any time prior to April 1, 1923, the said A. A. Davis went to Weir, a place in Williamson County, Texas, and had a conversation with R. W. Burleson in which the said A. A. Davis in substance accused the said R. W. Burleson of improper relations with a woman called Mrs. Campbell, and, in substance, told the said R. W. Burleson that he must discontinue his associations with the said Mrs. Campbell, and delivered, at the time of said conversation, a paper to the said R. W. Burleson on which were, in substance, the words, 'Georgetown Klan No. 178, K. K. K.,' and on which paper the imprint of a seal had been made. And the said A. A. Davis did on the day and date first above named (that is, on or about the 10th day of May, A.D. 1923) in Williamson County, Texas, before and to the said grand jury, under the sanction of the said oath administered to him as aforesaid, wilfully and deliberately state and testify, among other things, in substance and to the effect, the following:"

(After setting out the testimony of the said A. A. Davis, the count proceeds):

"And which said statement and testimony was then and there material to the inquiry aforesaid and to the matter then and there under investigation by said grand jury."

The indictment then proceeds to set out the truth of the matter with reference to the testimony alleged to have been given by the appellant before the grand jury.

The third count in the indictment, after alleging the organization of the grand jury, and that the appellant appeared before the grand jury and was sworn as a witness, proceeds as follows:

"Whereupon it then and there became and was a material inquiry before said grand jury and necessary for the due administration of the criminal law of said state and for the ends of public justice, whether in the County of Williamson and State of Texas, on or about the 1st day of April, A.D. 1923, Murray Jackson, Olen Gossett, Dewey Ball, R. A. Hewlett and Sam Threadgill, did then and there unlawfully and wilfully, while then and there unlawfully carrying on and about their persons, pistols, with said pistols, in and upon R. W. Burleson make an assault."

(After setting out the testimony alleged to have been given by the appellant before the grand jury, the count proceeds):

"And which said statement and testimony was then and there material to the inquiry aforesaid and to the matter then and there under investigation by the said grand jury."

The further portion of the count of the indictment undertakes to allege the truth with regard to the testimony given by the appellant before the grand jury. We are unable to agree with the contention made by the appellant relative to the allegations in said indictment and upon inspection it will be shown that the allegations therein are sufficient, and that the testimony of said defendant before said grand jury was material to the issues under investigation, and said counts go into detail to show importance of said testimony and said investigations with all the degree of certainty that the law requires in such cases. The authorities cited by appellant on the questions under consideration are not applicable to the facts of this case. Branch's Ann. P. C., Sec. 840, p. 473, announces the law correctly, which states:

"The materiality of the alleged false statement is sufficiently alleged if it is simply averred that it was material to the issue, and if such averment is made it is not necessary that the allegations of the indictment show how such statement became material."

Citing Massie v. State, 5 Tex.Crim. App. 81. Jones v. State,174 S.W. 1073, and many other authorities, which we believe hold against the contention of appellant.

Appellant complains in bill of exception No. 3 of the court's action in permitting the state to prove the statements made by appellant before the grand jury, because he contends that he was under arrest, restraint or suspicion at said time, and to the court's qualification of said bill to the effect that he was not under arrest, had not been, nor thereafter during the term of said court, and was not indicted for any offense at that term of court. We believe there was no error in the ruling of the trial court in this particular, and the appellant having accepted this bill with the qualification thereto, in law is bound thereby. If the qualification was not satisfactory to appellant's counsel they should not have accepted the bill with same attached.

Complaint is made by appellant in bill 4 to the action of the court in permitting prosecuting witness Burleson to testify to acts of the assault made upon him, practically as set out heretofore in this opinion and to the effect that he had never in his life received any notice of the kind, except the one he received from defendant Davis, because said witness was prejudiced against appellant, unfair, and same was hearsay, and defendant was not shown to have any knowledge of said assault and statements made at the time thereof. We are unable to agree with the contention made by the appellant in this particular, and believe same was material to the issues involved, and his objections would go more to the weight than admissibility of the testimony. If the witnesses for the state were to be believed by the jury, the appellant delivered the notice in question to witness Burleson upon Ku Klux stationery with the Ku Klux seal and said Davis at or after a meeting of said Klan stated he would look after the matter of said witness Burleson and Mrs. Campbell, and when he delivered said notice, accused him of having improper relationship with her and demanded same cease, and upon the date of the assault the floggers made inquiries relative to said relationship and said notice would show by circumstances his connection with the assault or knowledge thereof, although he might have been or was absent at said time. It certainly cannot be said that said testimony would not show or tend to show appellant's knowledge of said matters when he was before the grand jury.

Bill of exception 5 complains of the refusal of the court to require state to elect upon which count in the indictment it would rely upon for a conviction; the court, as herein shown, only submitted counts one and three to the jury, and the bill does not disclose any error of the court in this respect.

We have examined bills of exception Nos. 6 to 15, inclusive, some of which are insufficiently full to manifest the errors complained of, and others fail to disclose any errors of the trial court and we therefore overrule the contentions therein made. This brings us down to the contentions made by the appellant in supplemental argument or brief wherein it is contended with force and plausibility that the court erred in his charge, in not submitting to the jury for their consideration the character, nature and scope of the grand jury's investigation at the time appellant appeared and testified before that body; in other words it is contended that the court in this portion of his charge, assumed the character of investigation the grand jury was making, and the materiality of the statements of defendant at said time, and that same had been proved by the state, and did not submit same to the jury. The record as herein before stated shows the appellant introduced no testimony in this case, upon any issue made by the state, except at the time and place of the alleged assault he was not there, but forty miles away. Upon this phase of the case the only question arises is whether the state adduced the quantum of proof upon the points in question, to show that in absence of any controversy, the state had established that said allegations were true beyond a reasonable doubt, and that if the court had a right in this instance to so assume, in so charging the jury in this case.

The state has cited us to many authorities in support of the court's charge on this proposition: Robison v. State,91 S.W. 578; Morgan v. State, 67 S.W. 420; Holmes v. State,150 S.W. 926; Creed v. State, 155 S.W. 240; Mueller v. State,215 S.W. 93; Carter v. State, 181 S.W. 473; Spearman v. State,152 S.W. 915. After a careful consideration of this question and the authorities by the learned counsel on both sides of this case, we are of the opinion that there is no error in the charge of the learned judge, as applied to the facts of this case. The state's proof was uncontradicted, amply sufficient, and without controversy upon the points in question, and we are of the opinion that the court was fully warranted under the law and facts to submit the charge in question as presented in this case.

There is another reason that we are constrained to hold that there was no error committed by the trial court in this respect, and that is this: The state's evidence being uncontroverted in this case, and we think, amply sufficient to warrant the action of the jury in finding the defendant guilty, and the court's charge we think is sufficient, but if it were open to the criticism herein made, still we fail to see where the defendant has been prejudiced thereby, or that the record disclosed in any respect where he has not had a fair trial in this case. We therefore are unauthorized in such cases to reverse the judgment. Vernon's C. C. P., Art. 743, and authorities thereunder cited, including Barrios v. State,204 S.W. 326; Gill v. State, 208 S.W. 926, and many later decisions of this court to the same effect, prohibit this court from reversing cases upon charges of the court, unless the record discloses that said charge was calculated to injure the rights of the defendant and that he had not had a fair and impartial trial.

In this case after a very careful consideration of the entire record, including the lengthy and exhaustive briefs of both the state and appellant, we are forced to the conclusion that the defendant has received a fair and impartial trial in this case, and all the rights guaranteed to him under the Constitution and the laws of this state, were properly safeguarded by the learned trial court, and that the judgment in said court should be and same is hereby affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.