Shipp v. State

DAVIDSON, P. J.

Appellant was convicted of an attempt to induce Earl Marshall to commit false swearing. The indictment contains two- counts; the first charges appellant with attempting to induce Earl Marshall to commit false swearing, and the second with attempting to induce him to commit perjury.

Without copying the count submitted by the court to the jury, it substantially alleges that there was a trial in the district court of Bexar county, Tex., between S. P. Cunningham, plaintiff, and the San Antonio & Aran-sas Pass Railway Company, defendant wherein the plaintiff had sued the defendant, for personal injuries. On the trial of that case Marshall was a witness, and delivered testimony material, and it is so alleged, for the railroad and against Cunningham. This testimony, covers two- or more pages of the indictment, but is not here repeated. It is further alleged, after the verdict in favor of the railway company, Cunningham filed a motion for a new trial, and that appellant undertook to induce Marshall to make an affidavit to be used in connection with that motion. It is alleged the case was still pending, and the affidavit was to be used in connection with the motion for new trial. The affidavit sought to be obtained is thus alleged in the indictment:

“I, Earl Marshall, without any solicitation on the part of any one and of-my own free.will and accord do hereby make this statement: Through prejudice for Mr. John Sehorn for having me subpoenaed. Will Morriss for not trying my case when I thought he should have done so, for Frank MeCloskey because he agreed to advance me $50.00 per month and cut me down to $6.00 per week and for Mrs. Cunningham, Sam and Bemiss Cunningham for interfering with Miss Helen Cunningham and myself and preventing us from getting married. For all of the above reasons, I testified falsely against Sam Cunningham in the Forty-Fifth district court when he was suing the San Antonio & Aransas Pass Railway Company for damages for personal injuries to himself and through the solicitation of representatives for the San Antonio & Aransas Pass Railway Company I was induced to testify against Sam Cunningham in his suit for <laamp.es against the San Antonio & Aransas Pass Railway Company. Whereas in truth and in fact the said S. E. Shipp, at the time that he so solicited and endeavored to persuade and attempted to induce the said Earl Marshall to falsely and corruptly swear as aforesaid, well know that the said testimony given by the said Earl Marshall upon the former trial of the said case of the said S. P. Cunningham versus the San Antonio and Aransas Pass Railway Company, as hereinbefore set out, was true, and which said statement so attempted by the said S. E. Shipp to be induced to be made by the said Earl Marshall, he, the said S. E. Shipp, then and there well knew to be false, and would, if so made by the said Earl Marshall in the manner and form as aforesaid, be corruptly, deliberately, and willfully false, against the peace and dignity of the state.”

The court submitted in his charge only the second count of the indictment, which alleged appellant sought and attempted to induce Earl Marshall to commit perjury in connection with the motion for new trial. The court in his charge begins the charge with this general statement:

“In this case the defendant stands charged-by indictment with the offense of attempting to induce one Earl Marshall, to swear falsely, as charged in the second count in the indictment, and to the statement therein contained, said offense alleged to have been committed in the county of Bexar, and state of Texas, on or about the 2d day of February, 1916.”

After giving some definitions the court again stated to the jury:

“As heretofore related to you, and as charged in the second count of the indictment herein, for which the defendant is now upon trial, which said offense is defined by statute as follows: ‘If any person shall, by any.means whatever, cor-1 ruptly attempt to induce another to commit the offense of false swearing, he shall be punished by imprisonment,’ ” etc.

If appellant did, as charged in the second count of the indictment, seek to induce Earl Marshall to file a false affidavit to be attached to the motion for new trial by Cunningham, it was thought to be beneficial to Cunningham in attempting to set aside the verdict of the jury which had been rendered adversely to him, and place him in the attitude of again trying the case, or having the legal right to try the case on his petition for the alleged damages by the railway company to his person. The judge, having selected the count in the indictment, elected for the state the case upon which the jury should pass. This is the settled law in Texas. It amounted to an election by the state.

Having selected the second count, the charge should have submitted the issues under the allegations of that count. This count charged an attempt on the part of aijpellant to induce Earl Marshall to commit perjury by reason of the false affidavit to be used in connection with the motion for new trial. This count, had it been proved, would not have stated an attempt to induce false swearing, but only an attempt to induce Marshall to commit perjury.

If Marshall had testified as requested by appellant, or had signed the affidavit set out that his former testimony was false, it would have constituted perjury if false. 'It could not have constituted false swearing. The court submitted only the issue of false swearing. This he could not do under the second count, because false swearing was not therein charged, nor was an attempt therein charged to induce the party to commit false swearing alleged. From no viewpoint of the ease could this be false swearing had Marshall, signed the affidavit to be used, and it had been in fact used in connection with the motion for new trial. The court nowhere defines perjury, and did not submit any issue with reference to perjury, but confines his instruction entirely to false swearing.

Under article 304 as found in Mr. Branch’s Ann. P. C., at page 469, it is stated that perjury is a false statement, either written or verbal, made under the sanction of an oath, or such affirmation as is by la-w equivalent to an oath and administered under circumstances in which an oath or affirmation is required by law, or is necessary -for the prosecution or defense of any private right, or for the ends of public justice. Article 312 of the same work,- provides that false swearing is where any person shall deliberately and willfully, under oath or affirmation, etc., make a false statement by a voluntary declaration or affidavit, which is not required by law or made in the course of a judicial proceeding. These statutes mark the difference between perjury and false swearing as defined by the Legislature. Had Marshall been induced to make the affidavit set out to be attached to the motion for. new trial in the civil suit, it would have been in a judicial proceeding, and it would also be made under such circumstances that it could or would be used in a prosecution or defense of private rights. It was intended to assist Cunningham in obtaining a new trial in the damage suit which he had lost and the railway company had won. The new trial motion had been made by Cunningham to have this judgment, set aside and himself awarded a new trial. The case was still pending in court and had not been decided. The finality of the proceeding had not been reached. Had Cunningham obtained a new trial with this affidavit attached, it would have been in a judicial proceeding, and it would have placed him in a different and much better light than he was before a new trial was obtained. This affidavit was intended to be used, or the testimony of Earl Marshall to be, in connection with the motion for new trial, to show that his former testimony was' false. The allegation was that Marshall’s testimony on the former trial was true, and the affidavit, had it been made, would have been so made for the purpose and with the intent to show his former testimony false and to obtain a new trial. This brought the direct issue as to Marshall’s attitude in the trial of the case as to its position had the motion for new trial been obtained. A motion for new trial in a pending litigation is necessarily a part of a judicial proceeding. Therefore had the affidavit been-made in connection with the motion for new trial, and had been used in any way in ’connection with that case, it would have been perjury, and could not be false swearing. An attempt, therefore, to induce Marshall to make that affidavit to be so used would be an attempt to induce him to commit perjury.

The authorities seem to be uniform that where an act is done with the intent to commit a crime, and tending, but failing, to effect its commission, there is an attempt to commit the ultimate crime, which in this connection would be perjury under the indictment. There are a great many authorities whch might be cited to support this proposition, but it is deemed hardly necessary. The word “attempt” may be defined as an intent to do a thing, coupled with an act which falls short of the thing intended. The word “attempt” may also be given this definition : It implies an intent formed, and also an endeavor to commit the offense. In other words, an attempt to commit crime is composed of two elements: First, the intent to commit; second, a direct, ineffectual attempt towards its commission. It may be further defined as consisting, perhaps, of three elements; the intent to commit the crime, the performance of some act toward the commission of the crime, and the failure to consummate its commission. It falls short of the thing intended. In Brown v. State, 27 Tex. App. 330, 11 S. W. 412, it is said:

An attempt is committed only when there is a specific intent to do a particular criminal thing, which intent imparts a special culpability to the act performed toward the doing. It cannot be founded on mere general malevolence. When we say a man attempted to do a thing-, we mean that he intended to do specifically it, and proceeded a certain way in the doing.”

It is also held in State v. Mitchell, 170 Mo. 633, 71 S. W. 175, 177, 94 Am. St Rep. 763, that “the only safe rule is that the attempt is complete and punishable when an act is done with intent to commit the crime which is adapted to the perpetration of it, whether the purpose fails by reason of interruption or for other extrinsic cause,” etc. We speak here of an attempt in the sense in which these definitions are given, and many of these are found in volume 1, Words and Phrases, under the head of “Attempt.”

There would be no question of this proposition had appellant succeeded in inducing Marshall to file the affidavit .which he purposed to secure from him had Marshall sworn as desired. The complete act would have been perjury by Marshall because it involved the private rights of the parties litigant, and would have been in a judicial proceeding. It would therefore logically follow, and necessarily so, that under such circumstances the attempt would be to Induce Marshall to commit perjury, not false swearing. It could not be held under such circumstances that appellant was trying to suborn Marshall to commit false swearing when the very thing sought to be accomplished was perjury, and the accomplishment of which could only have been perjury. Article 319 of Branch’s Annotated Penal Code provides that, if any person shall, by any means whatever, corruptly attempt to induce another to commit the offense of perjury, or false swearing, he shall be punished by imprisonment in the penitentiary. In passing upon this phase of the law we would necessarily have to refer to the constituent elements of-the two offenses, perjury and false swearing, in order to ascertain what the purpose of the party was in attempting to induce the perjury or the false swearing. This being true, it is evident that if appellant was guilty of violating this statute, it would be by seeking to induce Marshall to commit perjury. The court does not charge upon perjury, but only upon the question of false swearing. Therefore, the court did not submit the issue set out in the second count, but instructed the jury that under an allegation of an attempt to induce Marshall to commit perjury, they would be justified in convicting of an attempt to induce false swearing. In other words, the indictment charged one offense and the-court authorized the jury to convict of another, ' which was not set out in the count nor included within it. For this reason the judgment must be reversed.

There are a great many exceptions ini the record, presented in divers ways. Without going into these matters specifically, it. will be noticed that the testimony delivered by Marshall as set out in the indictment in the trial of the civil ease was alleged to be true. The affidavit sought to be signed by Marshall alleged that all of these matters were false, and gave reasons why they were false. The indictment alleged generally all of the delivered testimony was true, and that the affidavit as a whole was false. The pleader having so declared rendered it incumbent that the proof or evidence should correspond. Under this statement the prosecution would be required to prove that all the testimony set out in the indictment was true; not a portion of it, but in its entirety.

Having alleged the general false statement in solido, the court was required also to charge that in order to convict from this standpoint, the entire affidavit would have to be shown false. The indictment did not allege in different averments that this or that part of the false affidavit was false, but alleged it generally in its entirety. It, therefore, became incumbent upon the state to so prove, and the court should have instructed the jury that, before they could convict, the entire testimony .was true, and the entire affidavit was false. This was not done, and exception was reserved.

There are several exceptions to the charge, some of which are well taken. Among others, exception was reserved to the charge of the court with reference to accomplice testimony, and special instructions requested to cover the deficiency. These were refused. They should have been given.

The jury should also have been instructed that the falsity must be proved by two credible witnesses, or one credible witness, supported by the necessary statutory corroboration.

It is also insisted that some witnesses who seemed to have figured largely in connection with Marshall and schemed to induce him to make the false affidavit .were accomplices, or at least the question should have been submitted to the jury for their determination. We are of opinion that their connection is such that the rule laid down in Dever v. State, 37 Tex. Cr. R. 396, 30 S. W. 1071, was applicable. It is unnecessary to go into the statement about this matter, but if upon another trial the testimony should develop as in this case with reference to this matter, we think it should be left to the determination of the jury by an appropriate instruction.

There are quite a lot of other bills of exception with reference to the rejection and admission of testimony. Without going into a detailed statement of these matters, if there should be another trial, we say, in a general way, that any testimony offered by the defendant to meet that introduced by the state, which combated or explained favorably to the defendant that introduced by the state, should be admitted. It is not the purpose here to go into a detailed review of that question. A general rule may be stated that, wherever one party introduces a fact which is thought to be beneficial, or whether beneficial or not, is introduced, the opposite party has the right to meet it in any legitimate available way by testimony. Either side always has the right to meet or explain any fact introduced against him. This is a fundamental rule.

There are quite a number of questions arising on the record which, if treated at length, would require a very lengthy opinion. It is thought these matters can be disposed of by writing in a general way. The indictment avers the truth of Marshall’s testimony and its materiality as delivered in the civil case. This was one of the leading issues alleged, and is a basis for the allegation of the false affidavit. The state’s theory was and is that Marshall’s evidence in the civil case was true, and appellant was seeking to induce him to swear that it was false, and this affidavit was to be used in the motion for new trial. If his evidence .was false, the state would necessarily fail to prove its case, because its truth had been alleged in the indictment. In this connection the state introduced only that part of Marshall’s testimony delivered in the civil case which is stated in the indictment. Upon the introduction of this portion of Marshall’s testimony, the district attorney announced to the court that the state would go no farther into Marshall’s testimony, and would not use other portions of it. As a part of defendant’s case he offered much of Marshall’s evidence, especially that elicited on his cross-examination in the civil case. This was done to weaken, if not to impeach, the testimony of Marshall as set out in the indictment. The state introduced other evidence which was sought to be attacked by defendant on cross-examination of Marshall and other witnesses and more fully developing the matters so elicited by the state. This was all ruled out by the court, and exceptions were properly reserved. The state was called upon to prove its case to the exclusion of the reasonable doubt of guilt and overcome the presumption of innocence. The alleged truth of Marshall’s testimony in the civil case necessarily had to be shown, because it was averred in the indictment. Appellant .was not called upon to show its falsity, and was not required to introduce any evidence until the state had at least made against him a prima faice case. Appellant, therefore, had the legal right to disprove any fact relied on by the state, and to show the falsity of any and all of such evidence. The court was in error, therefore, in refusing to permit such portions of Marshall’s testimony in the civil case which was sought by the defendant, and which tended to impair, weaken, or impeach that set out in the indictment.

Again, having alleged the falsity of the affidavit, it was necessary to so prove. Tlie defendant' would have the right to show its truthfulness either by direct or circumstantial evidence, and would also have the right to show the falsity of the testimony delivered on the trial in the civil case relied upon by the state by direct or positive evidence, or by circumstantial evidence, and as well by impeaching the truthfulness of the state’s witness, or resort to evidence known to legal rules applicable to such cases. Inasmuch as in this character, of case the state was required to prove its case by two credible witnesses, or one such witness with strong corroborating facts and circumstances, any attack which showed, or tended to show, that the witness or witnesses were not credible became of first importance, and necessarily introducible. This would apply not only to the witnesses ,who testified for the state, but defendant would be justified in resorting to any legitimate attack on the corroborating circumstances relied on by the state. Illustrative: Marshall’s character for truth was seriously attacked by defendant, and this was not undertaken to be controverted by the state. It was shown he had been and was rather given to familiarity with doubtful transactions in railroad damage suits, either for himself or others, or for the railroad. His acts and conversations and performances in these respects got into the case and became a part of it. The defendant sought to pursue these matters as shown by various bills of exception, but was prohibited from showing much of it. Among other things, he swore that he was practically compelled' and forced to make certain affidavits which were before the jury. These were used by the defendant to attack his credibility and his testimony with reference to these matters, and were damaging to his standing as a witness. He testified, further, that he informed the district attorney and gave him the details of these transactions, and stated some indicating that he acquainted the district attorney fully with the enviroments and surroundings of the reasons and impelling forces that required him to sign the affidavits. Those affidavits were contradictory of his main testimony for the state. The district attorney testified, in a general way, that the witness had said something about it, and when he was sought to be used by the defendant to show that the details of these matters were not given him as testified by Marshall, objection was sustained. If permitted, the district attorney would have contradicted Marshall upon these matters. This we think was important. Marshall was seeking to impress the jury with the fact that, as soon as he made the last affidavit, he informed the district attorney of these matters and the environments and surroundings. The district attorney would have testified,- had be been permitted, or so stated the bill, that Marshall gave him no such information.

We are stating these matters generally and not in detail, nor repeating the language. All this, of course, was introduced for the purpose of attacking Marshall, his veracity, credibility, and truthfulness. The importance of this will be noted from the fact that the statute requires the state to prove its ease by two credible witnesses, or one credible witness, with the necessary statutory corroboration. The credibility of Marshall, as well as the corroborating circumstances to sustain him, were of great importance to the state, and necessary to make out such case, as it might ask the jury for a verdict. Again, the falsity of the affidavit set out in the indictment must also be shown by the same weight and quantum of proof, because it was perhaps the most important question in the case. Marshall was a, if not. the, central figure of the trial. The state was compelled to present him as truthful and credible, in order to prove the truthfulness of his testimony delivered in the civil case, as well as the falsity of the affidavit averred to be false,'in which it was sought to induce him to change his former testimony. The false affidavit, as well as the alleged truthful testimony above mentioned, centered in the witness Marshall. He was the party who .was sought to be suborned or induced to make the false affidavit. By reading his testimony it will be discovered that on the trial he testified substantially that every reason set' out in the false affidavit, and given by him for making it, is true in regard to Mr. John Sehorn, Will Morriss, and Frank McOloskey, but so far as we recall the record he failed to testify anything in regard to Mrs. Cunningham, Sam and Bemiss Cunningham, and their stated interference with a prospective marriage between himself and Miss Helen Cunningham. On that matter the record seems to be silent; at least, the writer of this opinion does not recall any testimony from him in this respect. If he testified to the fact that he told the truth in the civil case, it is more from inference than direct or positive statement, and therefore the affidavit seems, as far as the evidence goes and as introduced to sustain it, true, and as to the other matters mentioned there was a want of evidence. It will be noticed in the indictment there is no allegation that any particular part of the testimony in the civil case was true. The indictment confines itself to the general statement that all of the testimony set out was true, and the allegation in regard to the false affidavit is as general. It selects no part or parcel of his testimony except as set out in the indictment as being true. If the affidavit is sufficient to show any attempt to induce appellant to change his testimony as given on the former trial, it is not mentioned, nor is there any innuendo averment specifying which part of it Marshall was to swear was false, otherwise than the general statement covering two or three pages in the indictment. If this is to be taken as the criterion of the case on this trial, then it would be incumbent upon the state to prove all the testimony set out to be true as stated, and it would also devolve upon the state to show everything in the false affidavit to be false. The witness Marshall himself testifies on this trial, as is stated in the affidavit, that he had ill feeling towards Messrs. Seliorn, Morriss, and McCloskey as the affidavit alleges. His testimony makes that part of the false affidavit true, if he was swearing the truth, and there seems to be nothing to contradict him in regard to that matter. Nor do we find any evidence in this record, especially by Marshall, that he had been induced to give the testimony in the civil suit at the instigation or solicitation of the representatives of the railway company. There should have been sufficient proof in reference to this matter as it was set up in the affidavit. That seems to be one of the issues about which there was- no testimony.

So the ease stands practically on Marshall’s testimony as to what he swore on the trial as to whether it was true or false. He was not corroborated, if so very slightly, but was attacked, and- it seems successfully, as to his truthfulness and veracity in a general way, and he is not corroborated by other testimony that the facts that he stated in the civil case are true. He places most of the matters in his testimony in the civil case in the presence of other people, mainly the relatives of the Cunninghams, but these were not introduced.

We have treated these matters in a general way, illustrating by what has been said that many of these bills of exception are of the same character and nature, and were reserved largely to the court’s failure to permit the defendant to contradict or impeach, or elicit facts which would contradict the evidence put in by the state, and this was of a material character. So that upon another trial the court will understand that wherever a fact has been introduced or circumstances permitted to go to the jury which were beneficial, or thought to be beneficial, to the state, the defendant would have the right, by any legitimate rules of evidence, to attack such showing for the state, or attack its force, or show its falsity. It is unnecessary, we think, to discuss all of these bills of exception.

The first count of the indictment has not been discussed because it passed out of the case by the selection by the judge of the second count, which is an election for the state, and the judge submits only the second count for the consideration of the jury. The failure to submit the first count eliminates it from the case, and it is therefore in no way mentioned or discussed.

The judgment is reversed, and the cause remanded.

PRENDERGAST, J., dissents.