Anderson v. State

120 S.W. 462, 56 Tex. Crim. 360, 1909 Tex. Crim. App. LEXIS 258

• Court: Court of Criminal Appeals of Texas
• Decided: May 19, 1909
• Docket: No. 4165.
• Status: Published

Opinions

BROOKS, Judge.

Appellant was convicted of perjury, and his punishment assessed at two years confinement in the penitentiary.

The indictment in this case is as follows: “The grand jurors for the county of Guadalupe, State aforesaid, duly organized as such at the fall term, A. D. 1907, of the District Court of Guadalupe County, upon their oath's present in and to said court that John Anderson, on or about the 15th day of May, 1907, and anterior to the presentment of this indictment in the county of Guadalupe and State of Texas, in and before the District Court of Guadalupe County, at its regular term, holden in and for, and then and there in session in said county, the Hon. M. Kennon, who was then and there the legally qualified judge of said court, presiding; and in a certain criminal judicial proceeding in. said court, and of which said criminal judicial proceeding the said court then and there had jurisdiction, and in which said criminal judicial proceeding the State of Texas was plaintiff and Charley McClure was defendant, and wherein said Charley McClure was duly and legally charged by indictment with having killed and murdered one Wash Anderson, in that it was thereby then and there so charged that Charley McClure, on or about the 4th day of November, 1906, in the comity of Guadalupe and State of Texas, did then and there (meaning the fimp and place last above mentioned) unlawfully, with malice aforethought, kill Wash Anderson by then and there (meaning the timo and place last above mentioned) shooting him, the said Wash Anderson with a pistol and a gun, and by then and there (meaning the time and place last above mentioned) stabbing and cutting him, the said Wash Anderson, with a knife and other sharp instrument, and by then and there (meaning the time and place last above mentioned) striking and beating him, the said Wash Anderson, with a stick and a rock, and by then and there (meaning the time and place last rbove mentioned) burning him, the said Wash Anderson, with fire, and by then and there (meaning the time and place last above mentioned) using other moans and instruments to these grand jurors (meaning the grand jurors who presented said indictment) unknown, by which he killed and murdered him, the said Wash Anderson, against the peace and dignity of the State, and in which said criminal judicial proceeding issue was then and there, in said court, in said county and State, on or about said May 15, 1907, aforesaid, duly and legally joined between said State of Texas and the said Charley McClure, and came on to be tried in due form of law before said judge and a jury duly organized in said cause, and in that behalf legally empaneled and sworn, and was. ■at said last mentioned time and place tried before-said judge and jury, and then and there, in said court, upon the said trial, John Anderson came and appeared in person as a witness in behalf of the State of Texas, and was then and there, in and before said court, at and during said trial, duly and legally sworn, and did then and there take his corporal oath before said court and jury as a witness to testify in said cause on said trial, which oath was then and there required by law and necessary for the ends of public justice; and which said oath was then and there, in said court, on said trial, duly administered to him, the said John Anderson, as aforesaid, by John T. Campbell, the clerk of said court, who was, when administering same, then and there authorized and qualified by law to so administer the said oath in that behalf and in the matter and cause aforesaid, and at and upon the said-trial of the said issue, joined ás aforesaid, between the said parties, as aforesaid, it then and there became and was a material question and inquiry whether said Charley McClure, at a place where said John Anderson and others had been gambling, about two miles or two and a half from said Wash Anderson’s house, on the night of November 2, 1906, said that he, Charley McClure, was going to kill him, the said Wash Anderson, and whether said Charley McClure, at the time and place last named, speaking to said Wash Anderson, further said, ‘You might as well give him (meaning Louis McClure) a stake; God damn you, I am going to kill you, anyway,’ and whether said Charley McClure, at said last named time and place, said to Wash Anderson, ‘I intended to kill you long ago for ordering me out in front of old lady Bell,’ and whether said Charley McClure, at said last named time and place, said to Wash Anderson, T intended to kill you, and I am going to kill you;’ and the said John Anderson, being so sworn as aforesaid, then and there, in said court, before Said judge and jury, on the trial of said issue and cause, upon his said oath administered to him as aforesaid, did, under the sanction of said oath administered to him as aforesaid, falsely, wilfully and deliberately, before the said court, judge and jury, depose, state and testify (among other things)' in substance and effect as follows, to wit: that said Charley McClure, at a place where said John Anderson and others had been gambling, about two miles or two miles and a half from said Wash Anderson’s house, on the night of November 2, 1906, said that he, Charley McClure, was going to kill him, the said Wash Anderson, and speaking to said Wash Anderson further said, ‘You might as well give him. (meaning Louis McClure) a stake; God damn you, I am going to kill you, anyway/ and ‘I intended to kill you long ago for ordering me out-in front of old lady Bell/ and T intended to kill you, and I am going to kill you/ and which said statements, and each of them, and every part thereof, so made by the said John Anderson, were then and there, in said court and on said trial, material to the issue in said cause; whereas, in truth and in fact, said Charley McClure was not, on said night of November 2, 1906, at said place where said John Anderson and others had been gambling, about two miles or two miles and a half from Wash Anderson’s house, and did not, at said time and place last named, speak a single word to said Wash Anderson, and did not, at said last named time and place, or at any time or place, say that he, Charley McClure, was going to kill him, said Wash Anderson, and did not, at said time and place last named, or at any time or place, say to Wash Anderson, ‘You might as well give him a stake, God damn you, I am going to kill you, anyway/ and did not, at said last named time and place, or at any time or place, say to Wash Anderson, ‘I intended to kill you long ago for ordering me out in front of old lady Bell/ and did not, at said time and place last named, or at any time or place, say to Wash Anderson, ‘I intended to kill you, and I am going to kill you/ and did not, at said last named time and place, or at any time or place, use said language set forth in said statement of said John Anderson, or any part of it, to said Wash Anderson; and which said statements, and each of them, and every part of them and each of them, so made by said John Anderson as a witness in said cause, in the-manner and form aforesaid, were deliberately and wilfully made, and were deliberately and wilfully false, as lié, the said John Anderson, then and there well knew when he made same, against the peace and dignity of the State.”

Appellant files the following motion to quash the indictment:

1. “Because said indictment fails to charge any offense against'the criminal laws of this State, and of this general exception defendant prays judgment of the court.

2. “Because said indictment does not allege and charge affirmatively, and in plain and unequivocal language, that there was pending before the District Court of Guadalupe County a criminal judicial proceeding in which defendant was called to testify and give evidence.

3. “Because said indictment alleges that the material question and inquiry before said court was: ‘Whether said Charley McClure, at a place where said John Anderson and others had been gambling, about two miles or two miles and a half from Wash Anderson’s house, on the night of November the 2d, 1906, said that Charley McClure was going to kill him, the said Wash Anderson, and whether said Charley McClure, at the time and place last named, speaking to said Wash Anderson, further said, ‘You might as well give him (meaning Louis McClure) a stake; God damn you, I am going to kill you, anyway,’ and whether said Charley McClure, at said last named time and place, said to Wash Anderson, T intended to kill you long ago for ordering me out in front of old lady Bell,’ and whether said Charley McClure, at said last named time and place, said to Wash Anderson, ‘I intended to kill you, and I am going to kill you,’ and said indictment further alleges and charges that the witness, John Anderson, testified in substance the matters and things alleged to be material, as hereinbefore set out, and said indictment fails to negative the truth of said testimony and state the true fact, as required by law, said negativing clause being as follows: Whereas, in truth and in fact, said Charley McClure was not, on said night of November 2, 1906, at said place where said John Anderson and others had been gambling, about two miles or two miles and a half from Wash Anderson’s house, and did not, at said time and place last named, speak a single word to said Wash Anderson, and did not, at said last named time and place, or at any time or place, say that he, Charley McClure, was going to kill him, said Wash Anderson, and did not, at said time and place last named, or at any time or place, say to Wash Anderson, ‘You might as well give him a stake, God damn you, I am going to kill you, anyway,’ and did not, at said last named time and place, or at any time or place, say to Wash Anderson, ‘I intended to kill you long ago for ordering me out in front of old lady Bell,’ and did not, at said time and place last named, or at any time or place (say to Wash Anderson, ‘I intended to kill you, and I am going to kill you,’ and did not, at said last named time and place, or at any time or place), use said language set forth in said statement of said John Anderson, or any part of it, to said Wash Anderson, and in said negativing statement it will be observed that the indictment alleges a legal conclusion in regard to said Charley McClure not being at a place where gambling was going on, about two miles or two miles and a half from Wash Anderson’s house, and said indictment should have alleged where said Charley McClure was on the night of November the 2d, 1906, so that it might be determined by the court whether or not he was at said place, it being a material assignment that what was said was said at a certain time and place, and in failing to make this allegation said indictment is fatally defective.

4. “Said indictment nowhere alleges that Wash Anderson’s house was burned on the night of November the 2d, 1906, or that Wash Anderson came to his death op November the 2d, 1906? or at any other time, which defendant says was necessary in order to render said statements material.

"Wherefore defendant says that said indictment is wholly insufficient to maintain this prosecution against defendant for pefiury, and he moves to quash said indictment.”

Without taking up seriatim appellant’s different contentions, we will say that the above indictment is in all things sufficient. It'affirmatively alleges the fact upon which perjury is predicated, and we have repeatedly held it is not necessary to allege how or wherein the testimony is material. The indictment does allege the testimony is material, and the indictment furthermore alleges that said testimony of appellant was then and there wilfully and deliberately made, and was deliberately and wilfully false. We have carefully examined this indictment, and quote it and the assignments, believing that in this way we can more accurately present appellant’s contentions, and must hold that the indictment is sufficient.

Appellant asked the court below to give special charge Ho. 1, which is as follows: “In this cause the jury is instructed that, in connection with the general charge given by the court relating to the number and character of witnesses necessary to convict in cases of perjury, you are further instructed that a ‘credible witness,’ such as has been referred to in said general charge, is one whose character is above reproach. If the jury believe from the evidence that the witnesses, Charley McClure and Louis McClure, are not credible witnesses, or if you have a reasonable doubt as to whether they are credible witnesses, you must disregard their testimony.” In defining a credible witness the court used the following language: “A credible witness is one who, being competent to give evidence, is worthy of belief. All witnesses permitted to testify upon the trial are ‘competent to give evidence,’ but you are the exclusive judges as to whether a witness is ‘worthy of belief.’” Furthermore, the court subsequently gave the following charge: “You have already been instructed 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 the defendant’s statement under oath; and that a ‘credible witness’ is one who, being competent to give evidence, is worthy of belief. In this connection you are instructed that, unless you find that the witness Charley McClure is a credible witness, you must disregard the whole of his testimony; and unless you find that the witness Louis McClure is a credible witness, you must disregard the whole of his testimony.” These charges, we think, clearly answer appellant’s contention, and is a proper definition of what is a credible witness. Appellant’s charge is not correct, since the same contends for the proposition that a credible witness is one whose character is above reproach. This is not a true criterion. One might be a credible witness and yet not above reproach. It follows, therefore, the court did not err in refusing the special charge.

Appellant’s special charge No. 2 is as follows: “The jury are instructed that the law presumes the testimony of the defendant set out in the indictment to be true, and of equal value to the testimony of any other one witness; and in order to convict the defendant of perjury the State must satisfy the jury, beyond a reasonable doubt, of its falsity, and that b the testimony of more than one credible witness, or by the testimony of one credible witness and other circumstances tending strongly to corroborate such witness; and unless the falsily of the testimony alleged in the indictment has been established by an amount of evidence greater than the testimony of one witness bearing upon that point, the jury must find the defendant not guilty.” As far as this charge is accurate it was covered in the main charge of the court. We know of no rule, of law that lays down the proposition that the law presumes the testimony of the defendant, set out in an indict-ment, to be true, and of equal value to the testimony of any other one witness. The latter clause would clearly be a charge upon the weight of evidence. The first clause is erroneous as a matter of law. The law attaches'no presumption of credibility to the allegation in a'perjury indictment of truthfulness. Evidently the learned counsel has mixed in his mind the presumption of innocence with legal presumption of veracity of statement. The allegation in the indictment proves nothing. It takes testimony to prove the facts. No presumption of guilt attaches from the indictment, but, as stated, the law does not presume predicate for perjury to be true. In fact, there is no presumption one way or the other about it. Special charge No. 3 was covered by the court’s main charge.

Bill of exceptions No. 1 shows that appellant made and presented to the court his certain written affidavit, requesting a severance, and asking that Ex Anderson be placed upon trial first, so that appellant might have the advantage of the testimony of said Ex Anderson^ it being shown that Ex Anderson was indicted for perjury growing out of the same trial, and the assignment of perjury in the case against said John Anderson being identical, or nearly so, with the assignment of perjury against Ex Anderson, which application for severance is as follows: “Now comes John Anderson, defendant in the cause above numbered and styled, and represents that Ex Anderson is indicted for an offense growing out of the same transaction as the one for which this defendant is indicted, but under separate indictments, .and that the testimony of said Ex Anderson is material for the defense of this affiant, John Anderson, and he verily believes that there is not sufficient evidence against the said Ex Anderson, whose evidence defendant desires, to secure the conviction of said Ex Anderson. And affiant prays that said Ex Anderson be first placed on trial.” The bill is approved, with this statement on the part of the trial court: “That perjury is an offense for which two persons can not be jointly indicted, the statements, though in substance the same, and occurring upon the same trial, constituting separate and distinct offenses.” In the case of King v. State, 35 Texas Crim. Rep., 472, this court held that, where an application for a severance, to procure the testimony of another defendant, which, was properly made, was overruled in the trial court, this court on appeal will not look to the statement of facts to determine whether the defendant has been injured in refusing him the right to have the other defendant first tried. So, in this case we will not look to the statement of facts in passing upon the question as to whether appellant has been injured by the ruling of the court. How, reverting to the bill of exceptions, which is practically copied above, it will be seen that the statement is made that “the assignment of perjury in the case against said John Anderson being identical, or nearly so with the assignment of perjury against Ex Anderson.” Article 707 of the Code of Criminal Procedure provides that, “Where two or more defendants are prosecuted for an offense growing out of the same transaction,” etc., they can seek a severance, and the same must be granted, but, as stated by the learned trial court in this case, the parties could not be jointly indicted for this offense, and the fact that each of them is indicted for swearing falsely in a given trial, the fact that the falsity is based upon a statement alleged to be untrue, substantially the same in each indictment, does not make it the same transaction within the contemplation of article 707 of the Code of Criminal Procedure, but the offense is a separate and distinct transaction. If the indictment in this case had charged that John Anderson entered into a conspiracy with Ex Anderson to swear falsely, or the facts should have so shown, and did get upon the stand on the trial, in compliance with said agreement, and did swear to the same tiling that Ex Anderson swore to, they would then be chargeable and charged with the same offense, having previously agreed to commit it, but the indictment before us has no such, allegation, and, as suggested above, we will not look to the statement of facts to ascertain whether the other indictment does or not, or the evidence suggested that it does or not. Suppose appellant in this case had been acquitted instead of convicted, and then the case of Ex Anderson had come on under the charge of perjury to be tried, and the appellant placed upon the stand by the State as a witness against Ex'Anderson? Could it be accurately insisted that appellant was an accomplice or a principal with Ex Anderson ? We hold not, the facts only showing that they were each indicted for perjury, and had practically sworn .to the same thing. These facts alone do not show conspiracy or acting together, therefore they constitute a separate and distinct offense, as suggested by the trial court. We accordingly hold that the court did not err in refusing the severance in this case.

Bill of exceptions No. 5 shows that the State offered in evidence the following statement made by the defendant, John Anderson, before Geo. R. Dix, justice of the peace precinct No. 5, Guadalupe County, holding an inquest over the body of Wash Anderson, the deceased, to wit: “My name is John Anderson, I live on Hashes Creek. The deceased man, Wash Anderson, is my brother. I saw the deceased man, Wash Anderson, about three o’clock on the morning of Hovember 3, 1906. We were at a supper on Hashes Creek. Everything went off all right at the supper. I left about three o’clock. The next time I saw Wash Anderson, deceased, was at his house, dead.” Appellant objects to the introduction of this testimony because said statement did not in any manner tend to contradict any statement made by the defendant, John Anderson, as a witness against Charley McClure, and did not tend in any manner to disprove the alleged statement of the defendant, John Anderson, assigned as perjury in this case, and because said statement had no reference to what took place at the place where it was alleged that gambling had been going on, on Hashes Creek, and because it was evident that the only inquiry made of the witness, John Anderson, was in regard to when he saw Wash Anderson last before his death, and whether or not everything went off all right at the supper, and because said statement so offered by the State to contradict John Anderson was immaterial and irrelevant to any issue involved in the case. We think this testimony is admissible, but if appellant’s objections are correct and well taken, then the testimony from that standpoint could not have injured appellant. However, we do think it tended strongly to support the State’s case and show that the testimony given upon the trial of Charley McClure was deliberately made, and false, since he says everything went off all right, when, as a matter of fact, on the trial of Charley McClure, he proposed and did detail an angry colloquy between deceased and said McClure.

We have passed on all of appellant’s assignments of error that we deem necessary to review in this case, and must say that the evidence clearly supports the verdict. The charge of the court is an admirable presentation of the law applicable to the facts of this case, and the judgment is in all things affirmed.

Affirmed.