Hurt, Judge.
One Green Wright was tried before a justice of the peace for carrying a pistol, on or about his person. The-trial was had upon a complaint, and upon the hearing appellant was a witness, and, being charged with giving false testimony, was indicted and convicted of perjury.
There is evidence in the record strongly tending to prove that the complaint was not sworn to. This being the case, it is insisted that the court should have instructed the jury that, if they had a, reasonable doubt as to whether the complaint was sworn to, they should acquit the defendant. Concede the fact that the complaint was not sworn to, does it follow that defendant could not commit perjury upon the trial under such complaint? There is-no question as to the jurisdiction of the justice to hear and de[716] "termine the cause then before the court. The court had jurisdiction of the offense, the subject matter of litigation. But appellant insists that the jurisdiction had never attached in that case, and hence there was no authority in the justice to swear the defendant, and, therefore, no perjury.
Upon this subject Mr. Bishop says: ‘‘ Thus we are led to the further proposition that not only must the tribunal have jurisdiction of the cause, as before explained, but the cause must be properly in court.” (l Bish. Crim. Law, sec. 1028.) To the same ■effect are all the authorities accessible to us at this place, for we have examined very carefully all of them. . We have found two English cases bearing upon this question, one of which is directly in point. In Regina v. Millard, Dean’s C. C., 166, an information, not under oath, was laid before a justice against a prisoner for unlawfully damaging a carriage, and the prisoner was-indicted for perjury committed on the hearing of that information. It was objected that the information ought to have been made under oath,.but it was held that, as the law did not require the information to be sworn to, therefore the justice had jurisdiction. It seems very clear that the converse would have been held if the law had required the information to be on oath.
But we have a case precisely in point in Regina v. Scatton, 5 Queen’s Bench, 493. The act of Parliament rendered it necessary that an information should be verified on oath of a credible witness before any proceeding be taken for summoning the party accused or compelling his appéarance. The information not Leing thus verified, it was held that the justice had no jurisdiction, and consequently a person giving false evidence on such .an occasion is not guilty of perjury. We deem it unnecessary to cite further authority in support of Mr. Bishop’s proposition, namely, that the court must not only have jurisdiction of the cause of action, but that the jurisdiction must have attached in the particular case.
From these authorities it would se'em to follow that the position of appellant is correct. We have -no doubt of its correctness at common law. But how stands the question when viewed in the light of the provisions of our Constitution? At common law, and, we suppose, in most of the States, to plead successfully former acquittal, the first trial must have been upon a good and sufficient indictment, information or complaint. Is this the case in this State?
Section 14 of the Bill of Rights reads: “No person for the [717] same offense shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction.” In some States it is held that jeopardy does not attach until verdict is rendered. In this State it is now held, and was at the time of the making of the Constitution, to be the law of this State that, where the accused pleads to a good indictment before a court of competent jurisdiction, and the jury are sworn to try the case, jeopardy attaches.
How, if this be so, why provide that no person shall again be placed upon trial for the same offense after a verdict .of not guilty in a court of competent jurisdiction? Is it not evident that this is inhibited by the jeopardy clause of the Constitution? Would any court permit a party to be again tried for the same offense, when he had been tried upon a good and sufficient indictment, before a court of competent jurisdiction, and acquitted by the jury? Does it require a constitutional provision to shield him from a second trial under the above facts? We think not.
But, as it frequently occurs that an accused is placed upon trial for an offense before a court of competent jurisdiction upon indictments vicious in substance, and that long and tedious trials are had, resulting in verdicts of acquittal, was it not the intention of the Constitution to say to the State that the accused shall not be tried again for the same offense though the indictment was in substance insufficient? After a most thorough examination of this subject, we are of the opinion that this was the intention of the framers of the Constitution. We could enlarge upon this subject, but have not the time.
Before leaving this subject we desire to give some illustrations as to what we mean by the same offense. A is charged, in the first instance, with the murder of B by shooting him. He is acquitted. In the second indictment he is charged with the murder of B by stabbing him with a knife or by striking him with a stick or bludgeon. The offenses are not the same, and, if the first indictment had been good, A could not have been convicted of the offense charged in the second indictment.
Again: A is charged with the theft of a bay horse, the property of B, and is acquitted. He is again placed- upon trial for the theft of a white horse, the property of B. Though the transaction be the same, the offenses are not the same. But let us suppose that the indictment charging the theft of a bay horse, the property of B, fails to allege that it was fraudulently taken, [718] ■or that it was taken without the consent of' the owner, or fails to allege that the accused took the property with the intent to deprive the owner of the value, etc. If the accused is acquitted, he can plead this acquittal in bar of another prosecution under a good and sufficient indictment—one which charges him with the theft of the same bay horse, the property of B, on an indictment containing all the elements of theft properly alleged.
If, therefore, the accused can be acquitted under a bad indictment, information or complaint, the court having jurisdiction ■of the cause of action—the offense—and this acquittal can be successfully pleaded to a second prosecution, may not a witness be guilty of perjury for false swearing upon the trial, though the jurisdiction of .the court may not have lawfully attached? For, if the court has jurisdiction of the offense—the subject matter— and a trial results in a verdict of not guilty, the State is forever ■debarred from another prosecution for the same offense; and the false testimony of a witness may, and no doubt would, in many cases contribute to an acquittal, and thus defeat the ends of justice.
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Hurt, Judge.
One Green Wright was tried before a justice of the peace for carrying a pistol, on or about his person. The-trial was had upon a complaint, and upon the hearing appellant was a witness, and, being charged with giving false testimony, was indicted and convicted of perjury.
There is evidence in the record strongly tending to prove that the complaint was not sworn to. This being the case, it is insisted that the court should have instructed the jury that, if they had a, reasonable doubt as to whether the complaint was sworn to, they should acquit the defendant. Concede the fact that the complaint was not sworn to, does it follow that defendant could not commit perjury upon the trial under such complaint? There is-no question as to the jurisdiction of the justice to hear and de[716] "termine the cause then before the court. The court had jurisdiction of the offense, the subject matter of litigation. But appellant insists that the jurisdiction had never attached in that case, and hence there was no authority in the justice to swear the defendant, and, therefore, no perjury.
Upon this subject Mr. Bishop says: ‘‘ Thus we are led to the further proposition that not only must the tribunal have jurisdiction of the cause, as before explained, but the cause must be properly in court.” (l Bish. Crim. Law, sec. 1028.) To the same ■effect are all the authorities accessible to us at this place, for we have examined very carefully all of them. . We have found two English cases bearing upon this question, one of which is directly in point. In Regina v. Millard, Dean’s C. C., 166, an information, not under oath, was laid before a justice against a prisoner for unlawfully damaging a carriage, and the prisoner was-indicted for perjury committed on the hearing of that information. It was objected that the information ought to have been made under oath,.but it was held that, as the law did not require the information to be sworn to, therefore the justice had jurisdiction. It seems very clear that the converse would have been held if the law had required the information to be on oath.
But we have a case precisely in point in Regina v. Scatton, 5 Queen’s Bench, 493. The act of Parliament rendered it necessary that an information should be verified on oath of a credible witness before any proceeding be taken for summoning the party accused or compelling his appéarance. The information not Leing thus verified, it was held that the justice had no jurisdiction, and consequently a person giving false evidence on such .an occasion is not guilty of perjury. We deem it unnecessary to cite further authority in support of Mr. Bishop’s proposition, namely, that the court must not only have jurisdiction of the cause of action, but that the jurisdiction must have attached in the particular case.
From these authorities it would se'em to follow that the position of appellant is correct. We have -no doubt of its correctness at common law. But how stands the question when viewed in the light of the provisions of our Constitution? At common law, and, we suppose, in most of the States, to plead successfully former acquittal, the first trial must have been upon a good and sufficient indictment, information or complaint. Is this the case in this State?
Section 14 of the Bill of Rights reads: “No person for the [717] same offense shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction.” In some States it is held that jeopardy does not attach until verdict is rendered. In this State it is now held, and was at the time of the making of the Constitution, to be the law of this State that, where the accused pleads to a good indictment before a court of competent jurisdiction, and the jury are sworn to try the case, jeopardy attaches.
How, if this be so, why provide that no person shall again be placed upon trial for the same offense after a verdict .of not guilty in a court of competent jurisdiction? Is it not evident that this is inhibited by the jeopardy clause of the Constitution? Would any court permit a party to be again tried for the same offense, when he had been tried upon a good and sufficient indictment, before a court of competent jurisdiction, and acquitted by the jury? Does it require a constitutional provision to shield him from a second trial under the above facts? We think not.
But, as it frequently occurs that an accused is placed upon trial for an offense before a court of competent jurisdiction upon indictments vicious in substance, and that long and tedious trials are had, resulting in verdicts of acquittal, was it not the intention of the Constitution to say to the State that the accused shall not be tried again for the same offense though the indictment was in substance insufficient? After a most thorough examination of this subject, we are of the opinion that this was the intention of the framers of the Constitution. We could enlarge upon this subject, but have not the time.
Before leaving this subject we desire to give some illustrations as to what we mean by the same offense. A is charged, in the first instance, with the murder of B by shooting him. He is acquitted. In the second indictment he is charged with the murder of B by stabbing him with a knife or by striking him with a stick or bludgeon. The offenses are not the same, and, if the first indictment had been good, A could not have been convicted of the offense charged in the second indictment.
Again: A is charged with the theft of a bay horse, the property of B, and is acquitted. He is again placed- upon trial for the theft of a white horse, the property of B. Though the transaction be the same, the offenses are not the same. But let us suppose that the indictment charging the theft of a bay horse, the property of B, fails to allege that it was fraudulently taken, [718] ■or that it was taken without the consent of' the owner, or fails to allege that the accused took the property with the intent to deprive the owner of the value, etc. If the accused is acquitted, he can plead this acquittal in bar of another prosecution under a good and sufficient indictment—one which charges him with the theft of the same bay horse, the property of B, on an indictment containing all the elements of theft properly alleged.
If, therefore, the accused can be acquitted under a bad indictment, information or complaint, the court having jurisdiction ■of the cause of action—the offense—and this acquittal can be successfully pleaded to a second prosecution, may not a witness be guilty of perjury for false swearing upon the trial, though the jurisdiction of .the court may not have lawfully attached? For, if the court has jurisdiction of the offense—the subject matter— and a trial results in a verdict of not guilty, the State is forever ■debarred from another prosecution for the same offense; and the false testimony of a witness may, and no doubt would, in many cases contribute to an acquittal, and thus defeat the ends of justice.
Just here let us give another illustration. All prosecutions -originating in the county court must be presented by informa"tion, and the information must have for its support a complaint verified by the affidavit of some credible person. How, let us suppose the accused is placed upon trial upon a good information, and is convicted and fined one hundred dollars. He pays liis fine and is discharged. Afterwards it is discovered that there was no complaint. • How, then, the jurisdiction of the county -court had not properly attached, and yet the accused has been tried upon a good information before a court of competent jurisdiction. Will it be contended that because there was no complaint, a witness who swears falsely,” deliberately, willfully and intentionally can not, and should not, be convicted of perjury when it may be that the accused was convicted solely upon Ids false testimony? We would hesitate long before we would sanction such a doctrine. But, suppose the accused be acquitted by verdict of not guilty, this would be a bar to another prosecution, when it may be that this verdict was obtained by the false testimony of a witness who, if we are wrong in our views upon this subject, is beyond the reach of the penal laws of this State. To this we can not agree.
Concede that the jurisdiction of the court had .not properly attached to the particular case, yet there was a trial before a court [719] of competent jurisdiction, upon a charge of an offense, and, though not properly before the court, its adjudication, if resulting in a verdict of not guilty, has such force and effect as will enable the accused to plead that the matter was res adjudicata, plead this trial before a court of competent jurisdiction and verdict of not guilty in bar of another prosecution. The judgment- in such a case would not be a nullity as to both the State and the accused, for, while the State would be bound by it, the accused, if convicted, would not. The State being bound by such a judgment, by reason of such a trial and verdict, we are clearly of the opinion that a witness swearing falsely upon such a trial would be guilty of perjury.
In the indictment, perjury is assigned upon both material and immaterial matter. The court below” very carefully confined the jury to that which was material and properly assigned as perjury, requiring the jury to believe beyond a reasonable doubt, from the evidence, the material matter which had been properly assigned as perjury, before they could convict; thus eliminating all immaterial matter from the issue. But the jury were instructed to look to all the evidence before them which, in their judgment, bore upon the question, in determining whether or not defendant testified on the trial of Green Wright that he (appellant) saw Wright have a pistol on the occasion referred to in the charge above, and, if so, whether such statement was true or false.
Counsel for appellant objects to this part of the charge because, as it is urged, the jury were authorized by it to convict upon immaterial matter. We do not so understand the charge. Perjury can be established by circumstances, as well as may other offenses. Let us suppose that the witness in his testimony gave a -circumstantial account of the material facts, and that perjury is assigned upon the material facts, the prosecution would be permitted to prove that he swore falsely as to the circumstantial, though immaterial, in aid or corroboration of the evidence adduced to prove that he swore falsely as to the material facts.
There are other objections urged to the charge, but we do not believe they are obnoxious to the criticisms urged by counsel, and, taken as a whole, it is a good application of the law to the facts of the case.
Counsel assigns for error the overruling of the motion for new trial, because the verdict is unsupported by and contrary to the [720] evidence. Perjury must be established by the testimony of at least two credible witnees, or of one witness corroborated strongly by other evidence, as to the "falsity of defendant’s statements under oath. One witness swore positively to the falsity of defendant’s statements, and he was very strongly corroborated by the testimony of other witnesses, as well as bjr the circumstances of the case. Hence, viewing the case in the light of the evidence which supported the verdict, we think- the measure of the law has .been filled. But, if the witnesses for defendant swore the truth, there was no perjury. There being a conflict, it was the province of the jury to settle this matter, which was done against the veracity of his witnesses; from which this court can not -furnish relief.
Opinion delivered at Tyler, December 8, 1886.
After a mature consideration of this case, we have found no-such error as will justify9 a reversal of the judgment, and it is affirmed.
Affirmed.