Smith v. State

White, Presiding Judge.

Appellant’s plea of former jeopardy was properly overruled and stricken out, it appearing from the face of said plea that the jury on the former trial, which had been discharged over objection of defendant, were not discharged until after they had been out considering of their verdict in the case for two days, and that then they were discharged because it appeared that they had been kept together for such a time as to render it altogether improbable that they could agree. In discharging them, under the circumstances, the court, in our opinion, did not abuse its discretion. (Code Crim. Proc., Art. 701; Powell v. The State, 17 Texas Ct. App., 346; Schindler v. The State, Id., 408: Varner v. The State, 20 Texas Ct. App., 107; Pizano v. The State, Id., 139.)

Appellant was tried and convicted for perjury. The two witnesses against him were George Thompson and his wife. George Thompson was impeached in two ways: First, by proving contradictory statements made by him to what he swore as a witness; and, second, by proof that his general reputation for veracity was bad. Besides this, his testimony was contradicted in some particulars by his wife, and in some particulars by the witness Bullían. Besides this, his own testimony showed him to have been an accomplice in the theft of Bullian’s hog, the theft of which caused the prosecution, in which defendant was charged to have committed perjury. There was no evidence strongly corroborating the testimony of George Thompson and his wife as to the perjury committed by this defendant. (Gabrielsky v. The State, 13 Texas Ct. App., 428; Hernandez v. The State, 18 Texas Ct. App., 135.) Now, it is expressly provided by statute 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 defendant’s statements under oath, or upon his own confession in open court.” (Code Crim. Proc., Art. 746; Gartman v. The State, 16 Texas Ct. App., 215; Anderson v. The State, 20 Texas Ct. App., 312.)

Opinion delivered November 10, 1886.

Mr. Bouvier, in his Law Dictionary, defines a credible witness to be “one who, being competent to give evidence, is worthy of belief.” Was the witness George Thompson such a witness? This was a question of fact to be determined by the jury under appropriate instructions from the court. The general charge did not give them such an instruction. Defendant requested two special instructions which in our opinion, under the facts in this case, it was error to refuse. They were: “1. If from the evidence the jury believe that George Thompson is not a credible witness, they must disregard the whole of his testimony. 2. A credible witness is one whose character for truth is above reproach. If the jury find from the evidence that the witness George Thompson is not a credible witness, they must disregard his testimony.” As stated above, .there being but the two witnesses as to the perjury, and George Thompson having been impeached, the instructions were called for by the facts.

For error in refusing defendant’s special instructions, the judgment is reversed and the cause remanded.

Reversed and remanded.