George v. State

Court of Criminal Appeals of Texas

George v. State

50 S.W. 374, 40 Tex. Crim. 646, 1899 Tex. Crim. App. LEXIS 111

CourtCourt of Criminal Appeals of Texas

DecidedMarch 22, 1899

DocketNo. 1730.

StatusPublished

Cited by1 cases

This text of 50 S.W. 374 (George v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

George v. State, 50 S.W. 374, 40 Tex. Crim. 646, 1899 Tex. Crim. App. LEXIS 111 (Tex. 1899).

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Opinions

HENDERSON, Judge.

Appellant was convicted of perjury, and his punishment assessed at confinement in the penitentiary for a term of two years, and he appeals.

Appellant made a motion to quash the indictment on the ground “that the same charged no offense against the laws of the State, in that said indictment shows upon its face that the statement assigned as perjury was an immaterial statement, or a statement concerning an immaterial matter, not affecting any issue involved in the trial of the case on the trial of which said perjury is alleged to have been committed; (2) that the statement in said indictment alleged as perjury is, as shown by the indictment, the denial of a statement made when the defendant is not alleged to have been under oath, and no denial thereof under oath will, under the law, support an assignment of perjury.” We have examined the indictment critically, and, in our opinion, it is sufficient. The gist of the charge, as we understand from the indictment, is that the appellant in this case was a witness in a certain case in which the State of Texas was plaintiff and Dan Jones was defendant, on a charge of an as.sault with intent to commit robbery. On the trial of said case, appel *648 lant appears to have been a witness for said Jones, and, among other things, testified that the man Who assaulted one Walker was a small man; the evidence being that the said Jones'was a large man, and the effect of his testimony being to show that it could not have been Dan Jones. On the cross-examination, as a predicate for his impeachment, he was asked if he did not state, in the presence of certain parties named in the indictment, and at a certain time and place, to wit, on the morning after the alleged commission of said assault, that the party who made said assault upon said H. 0. Walker was a large man. This he denied, stating that he did not so state. On this predicate the perjury was assigned. ' The testimony of appellant on the trial of the Jones case was upon a material matter; that is, he testified to a fact tending to show that it could not have been J ones who committed the assault with intent to rob, because J ones was a large man, and the party, according to his evidence, who made the assault, was a small man. How, it was competent for the State to show that he had made a statement contradictor to this, and such contradictory statement was material, and he could be impeached on the same; and we understand the indictment to lay the predicate upon said false statement in a logical method. It was not basing the perjury upon the unsworn statement, but upon the sworn testimony of appellant; that is, he swore on the trial of the Jones case that he had never stated to the parties named, and on the occasion referred to, that the party making the assault was a large man. It was competent to contradict him upon this issue, which was done in the trial of the Jones case, and, it being upon a material issue, it was competent to base a prosecution for perjury upon said false statement.

We have carefully examined the record, and, in our opinion, the evidence amply supports the finding of the jury. The judgment is affirmed.

Affirmed.

Davidson, Presiding Judge, absent.

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HENDERSON, Judge.

Appellant was convicted of perjury, and his punishment assessed at confinement in the penitentiary for a term of two years, and he appeals.

Appellant made a motion to quash the indictment on the ground “that the same charged no offense against the laws of the State, in that said indictment shows upon its face that the statement assigned as perjury was an immaterial statement, or a statement concerning an immaterial matter, not affecting any issue involved in the trial of the case on the trial of which said perjury is alleged to have been committed; (2) that the statement in said indictment alleged as perjury is, as shown by the indictment, the denial of a statement made when the defendant is not alleged to have been under oath, and no denial thereof under oath will, under the law, support an assignment of perjury.” We have examined the indictment critically, and, in our opinion, it is sufficient. The gist of the charge, as we understand from the indictment, is that the appellant in this case was a witness in a certain case in which the State of Texas was plaintiff and Dan Jones was defendant, on a charge of an as.sault with intent to commit robbery. On the trial of said case, appel *648 lant appears to have been a witness for said Jones, and, among other things, testified that the man Who assaulted one Walker was a small man; the evidence being that the said Jones'was a large man, and the effect of his testimony being to show that it could not have been Dan Jones. On the cross-examination, as a predicate for his impeachment, he was asked if he did not state, in the presence of certain parties named in the indictment, and at a certain time and place, to wit, on the morning after the alleged commission of said assault, that the party who made said assault upon said H. 0. Walker was a large man. This he denied, stating that he did not so state. On this predicate the perjury was assigned. ' The testimony of appellant on the trial of the Jones case was upon a material matter; that is, he testified to a fact tending to show that it could not have been J ones who committed the assault with intent to rob, because J ones was a large man, and the party, according to his evidence, who made the assault, was a small man. How, it was competent for the State to show that he had made a statement contradictor to this, and such contradictory statement was material, and he could be impeached on the same; and we understand the indictment to lay the predicate upon said false statement in a logical method. It was not basing the perjury upon the unsworn statement, but upon the sworn testimony of appellant; that is, he swore on the trial of the Jones case that he had never stated to the parties named, and on the occasion referred to, that the party making the assault was a large man. It was competent to contradict him upon this issue, which was done in the trial of the Jones case, and, it being upon a material issue, it was competent to base a prosecution for perjury upon said false statement.

We have carefully examined the record, and, in our opinion, the evidence amply supports the finding of the jury. The judgment is affirmed.

Affirmed.

Davidson, Presiding Judge, absent.

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Bluebook (online)

50 S.W. 374, 40 Tex. Crim. 646, 1899 Tex. Crim. App. LEXIS 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-v-state-texcrimapp-1899.

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