J. D. Gartman v. State

16 Tex. Ct. App. 215, 1884 Tex. Crim. App. LEXIS 94

Opinion

Will soy, Judge,

’"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, or upon his own confession in open court,” (Code Crim. Proc., Art. 746.)

In this case, the defendant not having confessed his guilt In open court, it. was incumbent upon the trial judge to instruct the jury that they could not convict 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. This was a part of the law of the case, and a very material part, and its omission was fundamental error. But even if it Avas not fundamental error, it was error which Avas excepted to by the defendant at the time of the trial, and must therefore necessarily cause a reversal of the judgment. (Clark’s Crim, Law, p. 516, cases cited in note.)

We are of the opinion that the indictment is a good one, and, except the above named omission in the charge of the court, there is no error apparent of record. Because of that error alone, the judgment is reversed and the cause is remanded.

Reversed and remanded.

Opinion delivered May 17, 1884.