Murff v. State

172 S.W. 238, 76 Tex. Crim. 5, 1914 Tex. Crim. App. LEXIS 531

• Court: Court of Criminal Appeals of Texas
• Decided: November 25, 1914
• Docket: No. 3271.
• Status: Published

Opinions

PBEHDEBGAST, Presiding Judge.

Appellant was convicted of perjury and the lowest penalty assessed against him.

The indictment herein was filed January 17, 1914. It charged perjury in two counts. The first was not submitted. He was tried alone-under the second. It charged the perjury to have been committed on May 30, 1913, in a trial wherein he was a witness in his own behalf in which he was charged with rape on Viola Johnson, alleged to have been committed on or about January 19,1913. This count is quite lengthy,— more than five typewritten pages. It is unnecessary to copy it. The allegations thereof are fully in accordance with the statute, the standard forms therefor under the statutes, and the many decisions of this court.

Appellant made a motion to quash the second count on these grounds:

First. Because it “fails to allege the result of the prosecution against the defendant in the original capital case in which said witness was alleged to have been a witness and to have testified falsely, for that if his said testimony had been injurious to the defendant, and said defendant had had assessed against him the punishment of death, then and in that event the punishment in this case would have been death, and defendant in this case would be entitled to a special venire from which to Select a jury to try him.” The mere statement of this ground of the motion shows that it is not well taken. Tire statute (art. 311, P. C.) is: “When the perjury is committed on a trial of a capital felony, and the person guilty of such perjury has, on the trial of such felony, sworn falsely to a material fact tending to produce, a conviction; and the person so accused of the capital felony is convicted and suffers the penalty of death, the punishment of the perjury so committed shall be death.” In every other event the punishment for perjury is imprisonment in the penitentiary for not less than two nor more than ten years. (Art. 310.)

Of course appellant had not suffered death. In no other case is it necessary to allege the result of the trial of a case in which the perjury is committed as it is wholly immaterial whether that trial results in conviction or acquittal. It could have no effect on the perjury committed on the trial thereof.

Second. That the indictment had been so changed, blotted, smeared and interlined since its original draft that it is unintelligible and, therefore, should be quashed.

Not one of these things appear in the copy in the record. There is no bill in any way presenting the matter, and, of course, this court can not assume that the motion states the facts. On the contrary, we must and do assume that the lower court acted correctly in not quashing the indictment on this ground.

Third. Because the indictment alleges that the oath administered to him in the trial of the rape case was by the deputy clerk of that court, and, he claims, there is no such officer known to the law who is authorized to administer an oath in any proceeding, judicial or otherwise.

The statutes, both civil and criminal, are the reverse of this ground of appellant’s motion. It is perfectly useless to cite them.

Fourth. That the indictment does not allege specifically at what term of the court the rape case was tried. This was wholly unnecessary. The indictment does allege the specific date on which the case was tried, and the perjury was committed, and that it was during the term of the court in which the rape case was tried.

Fifth. That the indictment charges no offense because in the charging part it undertakes to set out that he was charged by indictment with the offense of rape alleged to have been committed about January 19, 1913, and the statements attributed to and charged against him as the basis of perjury are confusing in that they charge statements alleged to have been made by him in regard to transactions occurring about February 13, 1913.

This presents no defect at all, for while the indictment in the rape case alleged that the rape was committed on or about January 19, 1913, clearly on the trial thereof evidence could be properly admitted that the offense was committed on that day or on February 13, 1913, or as for that matter, on both daj^s. And his false testimony could have been given as it is alleged it was as to things which occurred and did noil occur on both of those days. In offenses of that character the proof is never limited to the particular day on which the offense is alleged to have been committed. Any time prior to that within the statute of limitation and any time after that, before the filing of the indictment, may be proven.

Sixth. That the indictment fails to allege affirmatively that each of the statements made by or attributed to him was material to the cause then upon trial.

In this appellant is unquestionably mistaken. The indictment specifically is to the reverse of what he claims in this ground of his motion. The court correctly held that the indictment was good against each and all of appellant’s said grounds to quash it. j

He also complains that the court erred in sustaining the State’s demurrer to his plea of jeopardy and res adjudicata.

In this plea appellant alleges that the State ought not to further prosecute him in this cause, because on February 22, 1913, in Criminal District Court No. 2 of Dallas County, there was duly and legally presented and filed therein a valid indictment against him, charging him with the offense of rape, alleging therein that on January 19, 1913, he did ravish and have carnal knowledge of Viola Johnson, a female under fifteen years of age, not being his wife. To this plea he attached a properly certified copy of said indictment so averring. His plea further alleged that he was duly and legally tried upon the merits in said court by a jury on said indictment on May 31, 1913, and was there duly and legally acquitted of that offense. He also attached a duly certified copy of the judgment' of acquittal. From the plea there is no question but that the appellant was the accused in said rape ease; that the indictment was a valid one; that he had a due and legal trial of the case on its merits and was legally acquitted in that case.

The State filed a general demurrer to said plea and asked that the plea be stricken out and held for naught as it was insufficient in law and presented no defense to the indictment in this cause. The court sustained the State’s demurrer and held, in effect, that the plea presented no valid defense in this case and overruled said plea.

The indictment in this case was not based on any allegation therein that appellant was guilty of the rape for which he had been so indicted and tried, nor does it allege that he was guilty of said rape, nor that he swore on said rape - trial that he was not guilty of said rape, nor that he had not committed it. It makes no allegation on that subject. Nor did the court submit any such issue to the jury.

It is true the indictment -did allege that the perjury committed by appellant was committed on the trial of the case against him for rape. The indictment herein based the perjury on each and all of the following alleged false statements made by appellant on the trial of his rape case, towit: “I was not in the Wilson Building on Main Street in the City and County of Dallas, Texas, on Sunday, January 19th, A. D. 1913. I did not go into my office at any time during the day of January 19, 1913. I did not have Viola Johnson in my office on the 19th day of January, 1913, at any time during that day. I did not touch her or put my hands upon Viola. Johnson in said Dallas County, in the Wilson Building, on the 13th day of February, 1913. I did not, on the 13th. day of February, 1913, in the Wilson Building, in the City and County of Dallas, lay Viola Johnson down on a coat and attempt to get down on her and unfasten some of her clothing and attempt to have carnal knowledge of her. I never had intercourse with the girl, Viola Johnson, in Dallas County, Texas, on January 19, 1913. I did not have carnal intercourse with Viola Johnson in Dallas County, Texas, on the 13th day of February, 1913. I did not put the said Viola Johnson down on a coat and try to have intercourse with her and hurt her until she was about to cry, because she was so small. I did not try to have carnal intercourse with Viola Johnson and did not go into another room and deposit semen in a cuspidor.”

The court submitted only those statements to the jury for a finding, as the basis of perjury.

The indictment alleged specifically that appellant swore and made each and all of the said specific statements on his trial in the rape case, and also properly alleged that “said statements and each of them and every part thereof so made by the said Luther A. Murff were then and there in said court on the said trial material to the issue in said cause,”— said rape case.

The substance and effect of appellant’s contention on this question is that as appellant was tried and acquitted of rape he could not thereafter be tried for perjury committed by him on that trial, for any subsequent trial for perjury would be putting him in jeopardy again for the same offense and any subsequent indictment and trial for perjury committed on the trial of the rape case would be res adjudicata in that he was acquitted of rape in the trial therefor.

Out Constitution (art. 1, sec. 14) says: “No person, for the 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.” The statute (art. 9, C. C. P.) copies this constitutional provision.

Our statute (art. 1063, P. C.) says, rape is the carnal knowledge of a female under the age of fifteen years, other than the wife of the person, with or without her consent and with or without the use of force, threats or fraud. The punishment therefor (art. 1069, P. C.) is by death or confinement in the penitentiary for life or for any term of years not less than five.

Our statute (art. 304, P. C.) defines perjury as a false statement, either written or verbal, deliberately and wilfully made, relating to something past or present, under the sanction of an^oath, where such oath is legally administered, under circumstances in which an oath is required b3r law, or is necessary for the prosecution or defense of any private right, or for the ends of public justice.

The punishment therefor (art. 310, P. C.) is confinement in the penitentiary for not less than two years nor more than ten years.

These two offenses,—rape and perjury,—are as distinctly different as any other two offenses can be. Neither can be the other. A trial for one of these offenses can not put the accused in jeopardy of the other offense.

If appellant’s contention was correct, then when an accused was tried for any offense, and he committed perjury on such trial, the mere trial itself would be perfect immunity for any perjury that he might commit on the trial thereof. This would be offering a high premium to everyone who is charged with crime to testify falsely on his trial so as to secure an acquittal, for if appellant’s contention could be correct he could not commit perjury and could not be tried for any perjury he might commit in such trial. It would make no difference whether he was convicted or acquitted. He would be immune from perjury in either event. But the doctrine would be more monstrous if by bis perjured testimony he secured an acquittal.

We can not, for one moment, hold such a doctrine. No such doc trine was meant by either our Constitution or statute, nor can the language or spirit of either be tortured into any such meaning. An accused has no more right to commit perjury on any trial wherein he is tric'd for an offense and testifies falsely and then go scott free, than any other witness.

An accused does not have to testify in any case wherein he is tried for any offense. If he does so, it is wholly voluntary on his part. But if he does, like every other witness, he must testify "the truth, the whole truth, and nothing but the truth’’ If instead, he “deliberately and wilfully” testifies falsely, and not “through inadvertence, or under agitation, or by mistake,” he is guilty of perjury and should be punished therefor. There is no constitutional or statutory provision of our law which can be tortured into meaning that an accused shall be exempt from perjury because committed on his own trial. Surely, no criminal should be immune from perjury. Not should anyone, even though unjustly indicted, for a crime by a grand jury, and tried, be so immune. It was orally argued by appellant’s able attorney, when this case was submitted, that if he is subject to prosecution for perjury when he testifies on his trial when tried for crime, he would thereby in effect be precluded from testifying at all, fearing that even if, he testified the truth he would be indicted for perjury. Ho such an absurd and violent supposition can be entertained. He can not be indicted except by a grand jury of twelve good and lawful men, who each swears “he will diligently inquire into and (only) true presentment make,” and will “present (indict) no person from envy, hatred or malice,” but “present things.truly as they come to his knowledge,” and if a grand jury did otherwise they, or at least nine of them, would swear falsely. It is also the duty of tr-ial judges and prosecuting officers to protect the» innocent, as well as prosecute and punish the guilty, and we can not and will not indulge such an unreasonable presumption that all, or any of these officials,—grand jurors, trial judges and prosecuting officers,— will violate their oaths and duty.

We are in no way advised by this record what evidence was introduced, or what witnesses testified, in the rape case, other than the fact that appellant himself testified therein, for his testimony in the rape case, is reproduced in the trial in this case, but no other testimony is reproduced, so far as we are advised.

Of course, it was absolutely necessary to introduce additional testimony on the trial in the perjury case to that which was introduced on the rape case. Even if erery word of the testimony on the" rape case had been reproduced on the trial in the perjury case, it could not possibly have authorized the appellant’s conviction in this perjury case. It was absolutely, necessary in the perjury case, as stated, to introduce other and additional proof from what was introduced on the trial of the -rape case.

It is true that as appellant was tried and acquitted for the alleged rape, he could not again be indicted nor tried for the same rape. But in this perjury case he was neither indicted nor tried for rape. He was indicted and tried solely for perjury. It could very properly be held 'that he might have been innocent of the rape charged, and yet clearly and unquestionably guilty of perjury committed in the trial of the rape case.

In our opinion the court was unquestionably right in holding that appellant’s plea in bar and of res adjudicata presented no defense in this case and in sustaining the State’s demurrer striking out said plea. Miles v. State, 73 Texas Crim. Rep., 493, 165 S. W. Rep., 571.

The law prescribed a three months term for the trial court. The term at which this trial occurred convened on January 5th, continued in session and did not adjourn for that term until April 4, 1914. This trial began on February 18th, consuming several days before concluded. After conviction appellant made a motion for new trial, which was heard and overruled March 7, 1914, at which time appellant gave notice of appeal to this court; final judgment-sentence was then pronounced and the notice of appeal and sentence were on that day duly entered of record. At the time the motion for new trial was overruled, the trial judge granted and duly then entered on his docket an order allowing appellant thirty days additional time from that allowed by law to file bills of exception. By mistake and through an oversight the clerk failed to enter that part of said order granting said extension of time. This was not discovered until some fifty days thereafter. As soon as discovered by appellant’s attorneys, they for him, made a motion to enter said order granting said extension .nunc pro tunc. The court was then in session, that term beginning April 6, 1914. The State resisted said motion, claiming that because the order was not entered of record the court was without power then to enter such order because #of the fact that notice of appeal had been given and entered of record and this court had exclusive jurisdiction. The court, however, heard the motion and the evidence thereon. It was clearly established that the order for the extension of time was made at the time the motion for new trial was overruled; that it was not entered by the clerk in the minutes through his mistake and oversight, and the discovery that it had not been so entered was not made until more than thirty days thereafter and until after the court had adjourned for that term.

The statute (art. 914, C. C. P.) provides that a defendant may appeal from a conviction at any time during the term at which he is convicted. The next article prescribes that such appeal is taken by giving notice in open court and having it entered of record. Then the next article states that the effect of such an appeal is to suspend- and arrest all further proceedings in the trial court until the judgment of the appellate court is received by it, except it permits the lower court to have lost or destroyed papers or records substituted.

Under these articles this court has all the time held that the lower court could not amend or enter an order nunc pro tunc, unless authorized by some law to do so. Statements of facts and bills of exceptions were embraced thereby.

However, this court has always held that when the statute authorized the lower court to make an order after appeal, that it could be done. In Mosher v. State, 62 Texas Crim. Rep., 42, this court gave a history of the legislation of this State as to filing of statements of facts and bills of exceptions in the court below. It is unnecessary to repeat that here. It is sufficient to say that for the first time, by the Act of May 1, 1909, page 274, section 7, was the lower court given power and authority, in both term time and vacation, to extend the time for filing statements of facts and bills of exceptions in appealed cases. This law was again amended by the. Act of March 31, 1911, page 264, which, since then has been incorporated in, and is now and was when, and before, this case was tried, article 845 of our Revised Criminal Procedure. That article expressly gives the trial court power and authority, both in term time and in vacation, to extend the time for filing bills of exception for not longer than ninety days after the adjournment of court when the court can not hold eight weeks by law, and the sainé length of time from the final judgment-sentence when the court can continue under the law, longer than eight weeks. Under this express authority we think it was intended and should be held, as we do hold, that not only could such order be entered extending the time, but where a previous order had been made but had not been entered on the record, that the court can, within such time allowed, make an order entering nunc pro tunc the previously omitted order of extension. We are not passing on the question of whether or not the trial judge has power and authority after the term expires and the thirty days when no previous order of extension had been made, can then make any order of extension. That question does not arise in this case. So that the authorities relied upon by the State, holding that the lower court can make no order after appeal to this court are inapplicable. We will, therefore,, consider the bills of exception herein.

There are some fifty-one bills. In most instances several of them are about the same subjects and can be discussed together. We do not take them up in the order in which they appear in the record, but rather chronologically.

The proof showed that on the trial of the rape case appellant testified, to each of the statements made the basis of perjury, copied above. The testimony introduced by the State, if believed, and it evidently was, by the jury and lower court, was amply sufficient to show and did show that each of said statements was false; that neither of them were made-through inadvertence or under agitation, or by mistake and were made-by appellant at the time and place and under the circumstances alleged in the indictment.

The term of court at which this trial occurred convened January 5,. 1914. The grand jury preferred the indictment and it was filed January 17, 1914. Evidently appellant was at once arrested.^ He made no application for process for witnesses until February Stti. following. On that day he filed with the clerk an application for subpoenas for' five witnesses, three of whom resided in the City of Dallas, where this court was sitting and the trial occurred. One other, Dr. T'errell, was- alleged to reside in Galveston, Texas. The other, Miss Antonette Jones, resided in Houston, Texas. The application for these witnesses was on two sheets of paper. The clerk issued the process for the first three but overlooked the names of Terrell and Miss Jones on the second sheet, and issued no process for either of them. The application applied for the process, to be returned and the witness summoned to attend on February 16th. On that date the subpoena for the three Dallas witnesses was returned by the sheriff, showing that neither of them were summoned or could be found at the addresses given. Ho other process was applied for or issued for either of the Dallas witnesses and no effort whatever was shown to have been afterwards made to secure their attendance. The diligence as to them was, without doubt, insufficient to entitle him to a continuance. Besides, their testimony became wholly immaterial if it at all had been admissible. The case was called for trial on February 16th. The appellant then filed his application for a first continuance. As shown, no process had been issued for Terrell or Miss Jones and, of course, none served. Appellant neither applied for nor had any other process issued for either of them. The court granted a first application for a continuance to the extent of resetting the case two days later and the trial judge himself had process issued to Galveston and Harris Counties, respectively, for said witnesses, Terrell and Miss Jones. That process was not served and no other process was applied for, issued or served on either of those witnesses so far as this record shows. When the motion for new trial came on to be heard on March 7, 1914, among others on this ground, the court, it seems, heard evidence. What that evidence was is not shown by this record. The judge, in explaining the bills on the subject, among other things states, in effect, that Terrell did not live at Galveston but had lived at Temple. Texas, continuously for eight months before February 16, 1914; that on May 28, 1913, he had then told appellant he would remove from Galveston June 1, 1913, to Temple, Texas, where he would practice his profession as a doctor, and that if he wanted him as a witness he could notify him at Temple, Texas, and that he had removed, as he told appellant he would, and was at Temple during the time of his trial. The judge further shows that the testimony of Terrell would not. have been material in this case, and in our opinion it was not. It was further shown that Miss Jones for several years continuously up to the time of this trial had been and was the stenographer of appellant; that for some years prior to his trial for said alleged rape she had been a member of his household and lived with him and his family; that soon after the trial in the rape case he had moved himself and family, including Miss Jones as one of them, to Houston, where he lived at the time he was indicted in this case, and that she was his stenographer at Houston during the whole time he had lived there. As stated, appellant had no process issued for Miss Jones. When he applied for process for her and the other witnesses on February 5, 1914, lie did not procure the process, did not send or take it to any officer in Houston, Texas, to execute, did not see that it was issued and made no effort whatever otherwise than merely to apply for said process, to see that it was issued or served. There can be no doubt that if he had used any diligence whatever to see that this process was issued and served on Miss Jones he could unquestionably have had it done and have procured her attendance. The judge states that the process which he had issued on February 16th to Houston for Miss Jones went into the hands of the sheriff of Harris County and was on that same day returned not served; that the sheriff had made inquiry at the residence of Mrs. Murff, appellant’s wife; that she informed him that she had no information where Miss Jones was and had not seen her in some time; that the sheriff visited appellant’s' office and could get no information as to her whereabouts and “from the tone of Mrs. Murff’s talk in reference to Miss Jones’ whereabouts it appeared that she did not want the officer to find her.” In our opinion no such diligence was used to procure the attendance of Miss Jones as to authorize or require the court to grant him a continuance because of her absence. The trial judge further said in explanation of the bill on this subject: “It is the opinion of the court, ascertained from the record in this cause, that if the defendant had really wanted this witness he could have had her to testify,” and that is our opinion also, and we go to the extent of saying that from this record, it is our opinion that Miss Jones was absent by his consent and probably by his procurement.

The statute (art. 608, subd. 6, C. C. P.) says that no continuance “shall be granted as a matter of right.” All applications are addressed to the sound discretion of the court. The application nor record otherwise shows that appellant made any effort, inquiry or attempt to find where Miss Jones was or have her to attend. He doubtless knew where she was all the time. His case was first called for trial February 16th, continued over for two days for him to get her, which he did not do. She was his employee and had been for years; he had no process whatever issued for her after the process which the court had issued for had been returned not served. The trial of the case lasted • for several days,—from the record, we conclude it lasted six days.

When the Supreme Court had criminal jurisdiction, in Townsend v. State, 41 Texas, 134, that court said: ££In applications (for continuances) addressed to the discretion of the court it must clearly appear that the continuance was improperly refused before the judgment will be reversed. Lewis v. Williams, 15 Texas, 48; Trammell v. Pilgrim, 20 Texas, 158; Burrell v. State, 18 Texas, 713.”

This court, through Judge Willson, in Barrett v. State, 18 Texas Crim. App., 67, said: “An application for a continuance should set forth fully and distinctly the diligence used to obtain the absent testimony, or such' facts as will excuse the use of" diligence; and it must ■appear that all the means provided by law were resorted to by the defendant to obtain the testimony, and were resorted to promptly, or that facts existed which excused him from exercising such diligence.”

In Walker v. State, 13 Texas Crim. App., 618, p. 647, this court said: “We know of no rule of law which requires the 'State to show a want of diligence in opposition to a continuance. It devolves upon the defendant to show affirmatively and distinctly that he has used all the diligence to obtain his witness required by law.”

In Massie v. State, 30 Texas Crim. App., 64, this court, through Judge Davidson, said: “Neither will this court nor the trial court supply by inference and presumption allegations not contained in an application for a continuance which should be stated therein. The application must be complete within and of itself in order to require this court to say it was erroneously refused. Presumption, when indulged, will and must be in favor of the rulings of the court in reference to the matter complained of, and not against same.”

In Long v. State, 17 Texas Crim. App., 128, this court said: “The onus is upon the defendant to establish the exercise of diligence in support of an application for a continuance. . . . The burden is upon the party seeking a continuance to show himself entitled to it, by definite, exact, and certain averments.”

In Skipworth v. State, 8 Texas Crim. App., 135, this court said: “The law requires of a defendant a rigid compliance with the exact terms prescribed for such application, and if there is a lack of diligence apparent from the application or otherwise, its mandate is inexorable and the trial must proceed.”

In Mitchell v. State, 36 Texas Crim. Rep., 278, this court through Judge Hurt said: “It will be further observed that, although the trial in this case lasted four or five days, no effort was made to procure the attendance of any of the absent witnesses • after the trial began. For .aught that appears, by the use of reasonable diligence, they could have been obtained in dime to have testified in the case. Counsel, however, insist that on the overruling of his motion for a continuance he was not able to do any more in the way of diligence, and, no matter if said witnesses were accessible, and could have been produced, that upon the overruling of his motion for a continuance the ease was, as to that matter, in statu quo, and this court could not look beyond the time of the overruling of the application for a continuance as to the question of diligence. The statute places it in the discretion of the court to overrule a- motion for a continuance, and then to re-examine the question on motion for a new trial, and to refuse a new trial, unless it should appear that the absent testimony was material, and probably true. And we hold that it is perfectly competent for the court to looh to the action of the appellant and his counsel after the- overruling of a motion for continuance in passing upon the materiality or probable truth of the absent testimony. Suppose, in a trial of this character, counsel were informed by the court that the witness was in town and could be had, and counsel should decline to ask for process to bring the witness before the court, or suppose that afterwards (as in the case of the witness Chancery) he should actually come into court, and appellant should decline to use him, would not the court be compelled to hold in such case that appellant was trifling with the court, that the witness would not swear what was alleged, or else appellant did not regard the testimony as probably true? Such occurs to us to be the inevitable conclusion.”

In Cantu v. State, 1 Texas Crim. App., 402, this court said: “The affidavit for continuance does not state the officer or person to whom, or at what time, said subpoenas were delivered. For aught that is shown from the record, the subpoenas may have been received by the person who returned them on the very eve of the trial. . . . This court, in the case of Murry v. State, 1 Texas Crim. App; 174, and in the case of Dill & Rice v. State, 1 Texas Crim. App., 278, has decided that it is not a sufficient showing for a continuance for a defendant to state in his application that he has had an attachment issued for a witness by whom he could prove material facts in his defense, without stating the date when the same was issued, and the officer to whom it was delivered, and at what time it was delivered to him. See, also, the cases of Townsend v. State, 41 Texas, 134; Van Brown v. State, 34 Texas, 186. In applications addressed to the discretion of the court it must clearly appear that the continuance was improperly refused before the judgment will be reversed. Nothing is to he presumed in favor of an application for continuance, hut the presumption must he that the party making it stated his facts as strongly as he could."

In Buie v. State, 1 Texas Crim. App., 452, this court said: “It has heen repeatedly decided hy this and the Supreme Court that it must he shown what was done with the p-ocess obtained for a witness; that it should he made to appear that it was placed in the hands of the proper officer if the witness resided in the county; and, if he resided out of the county, then that it was forwarded, and how and when, to the proper officer there."

Somewhat soon after the trial began, the State introduced the court stenographer who took down appellant’s testimony in the rape case. He identified his transcribing by question and answers, appellant’s testimony therein. The matter as to the correctness of his report and transcribing his evidence was then somewhat thrashed out. The State then introduced the whole of that testimony as transcribed by the ¡stenographer. Some time after this,—the exact time not -shown, but it must have been at least one or two days after Murffs evidence was introduced,—the attorneys discovered that the stenographer had transcribed this answer: “Tes, I asked her to come hack to the office on Monday morning,” in answer to a question to him if he said anything to Viola Johnson about coming to his office on Monday, or any time thereafter. Several witnesses were introduced by appellant as to whether or not the word “back” was used by appellant as a part of his answer. The appellant contended that he had not used it. The appellant thereupon desired the court to suspend the trial in order for him to get the twelve jurors before the court and testify on the point. The appellant had already had the county attorney who tried the rape case, the trial judge in that trial, both attorneys for appellant, and the court stenographer to testify thereabout. One ground of his motion for new trial was that the court committed reversible error in not postponing the trial and permitting him to send and get the twelve jurors in the rape case to testify on the point. The court, in allowing the bill on the subject, explains and qualifies it as follows:

"It is not true, as stated in the bill, that the court had refused the defendant process for the jurors who tried the rape case. It will be noticed by the court that defendant’s attorney first took the stand voluntarily, and made his statement in regard to stenographer Evans’ notes being incorrect, and then put Evans on the stand, and Mr. Evans said that, finding this language twice in his notes, he knew there was no mistake, although he had told Mr. Adams that he believed there was a mistake. After the case had ended, Mr. Adams desired that the court suspend trial, in order that he could get the twelve jurors into court, who were scattered in different parts of the county. He didn’t state that he had ever conversed with any of them, or that he had any idees what they would state, although several witnesses had been examined after the testimony had ended. Process just before this time, had been asked for the witnesses. This case had taken an unusually long time to be tried, and the court declined to allow Mr. Adams to send for witnesses, when he didn’t lenow what their testimony would he, and thus delay the case, and get the witnesses in in order to ask their independent recollection as to whether one word was used or not in Murff’s testimony on the previous trial.”

The appellant accepted that bill as thus qualified and is bound thereby. As explained and qualified by the court this shows no reversible error. Although it was two weeks later when appellant filed his amended motion for new trial, he attached no affidavit of any juror to show he would testify appellant did not use said word in his answer. Doubtless none of them would have so sworn.

The record shows that wdien the officer, Mr. Harston, first arrested appellant in the rape case that he asked him who had made the charge' against him, and when informed by Mr. Harston that the probation officer, Mr. Lowry, had done so, he asked to be taken to Mr. Lowry so that he could discuss the matter with him. The officer complied with his request and took him to Mr. Lowry. Mr. Lowry’s office was in the courthouse in Dallas. The court, over appellant’s objections, permitted said officers Hartson, Lowry and Chick, each to testify fully what appellant had said to them about his acts and conduct with Viola Johnson. He was then under arrest in the rape case. The testimony of each of these officers was most damaging against appellant and it tended to establish and was amply sufficient to establish in connection with other testimony and with the testimony of Viola Johnson, that appellant did and said everything which he was alleged to have done and said and which he denied doing and saying which were made the basis of the charge of perjury against him in this case. His objections to all this testimony was that he was under arrest at the time in the rape case; that what they testified he said was not in writing; that he was not warned and, in fact, that it was a confession and could not be used against him in this trial because thereof. The court' explained and qualified the bills on this subject, among other things, as follows: “First: There was no complaint of duress in regard to this evidence except that the defendant was under arrest, he having sought Lowry for the purpose of having the conversation with him. Second: I do not think that section 810 of the statutes, in regard to warning applies to confessions or statements made by the defendant when a crime with which he is now charged had not been committed, and was not committed for several months afterwards. As I understand the statute, there is [no] a prohibition of the using of a confession made by a defendant except in compliance with the statute, in regard to the matter for which he was under arrest. Third: The language of the statute as to the warning is this: 'That the defendant does not have to make any statement at all; and that any statement made may be used against him on the trial of the offense concerning which’the confession is made.’ There is and there can not be a warning, under the statute, to the effect that a statement could be used against him in any subsequent crime that he might commit. Therefore, even if he had been warned, the warning could not be applied to this ease of perjury. As I understand 'being under arrest’ is statutory duress, and we are controlled by the terms of the statute.”

The trial judge committed no error in permitting the testimony of these officers to be introduced. The question, we think, has already been thoroughly considered and decided by this court against appellant.

In Mathis v. State, 39 Texas Crim. Rep., 549, it was shown that Mathis was in jail on a charge of cattle theft. While therein he made certain threats against A. T. Wooten, who was a witness in the theft case. • Also that while so confined he also made other threats to S. P. Clark against Wooten. Mathis was afterwards tried. Wooten was a witness against him. The jury convicted him and' after the verdict had been returned he seized a chair and attempted to assault Wooten therewith. Thereupon he was indicted for an assault with intent to murder Wooten, convicted and his punishment assessed at two years in the penitentiary. The court in that case said: “The court explains the admission of this testimony by the statement that the offense for which the defendant was under arrest was a charge of cattle theft, and the offense for which defendant is now being tried had not been committed, and no charge made against him with reference thereto, and it was admissible and material to show motive and malice. Our statute regulating the admission of confessions evidently has reference to the offense for which the defendant was then held in custody. See Code Crim. Proc., art. 790. It has been held, however, that the confessions of defendant can be used against him, if made in accordance with said article, if such confessions relate to some' past offense. We know of no case where statements, acts, or conduct of a defendant of a criminal character, while in jail, concerning an offense then being committed, or concerning some offense to be committed, have been excluded' under this article. In Davis v. State, 19 Texas Crim. App., 201, it was held that such evidence is admissible outside of the statute. To illustrate: Suppose A, a prisoner, should assault B, a fellow prisoner, while in jail; would the acts and conduct of A, including his declarations in-connection with the offense, be excluded, because no warning had been given under the statute? Certainly not. Again, suppose A, the prisoner confined in jail, should assault B, the jailer, with a stick,— a weapon not necessarily deadly,—and should be subsequently tried for an assault with intent to murder, and the question should be whether or not the assault was made with the specific intent to kill; under these circumstances, would it be competent for the State to show by some fellow prisoner of A that prior to the assault he had stated that he intended to kill B, the jailer, and make his escape? We think that such . testimony would be clearly admissible, without any infringement on said article of our Code of Criminal Procedure. We therefore hold that-the court did not err in admitting said testimony.” This Mathis case was expressly approved and a like holding had in Pate v. State, 46 Texas Crim. Rep., 483. The Mathis case was again expressly approved in Reinhard v. State, 52 Texas Crim. Rep., 59, and such testimony held admissible; and again approved and the doctrine stated as correct in Robinson v. State, 55 Texas Crim. Rep., 42; see also Miles v. State, 73 Texas Crim. Rep., 493, 165 S. W. Rep., 567.

What appellant said to these witnesses pertaining to his acts and conduct with reference to the rape charge against him could by no possible construction be considered a confession for the crime of perjury not then committed but committed months afterwards. The very definition .of "confession” by all authorities excludes the idea of the future. It applies solely to the past.

Of course, the deputy clerk could testify that he was such official without producing his appointment, qualification, etc.

The court properly permitted the clerk to produce and identify "the indictment in the rape case and to introduce it in evidence. And so he did in permitting the trial judge in the rape case to testify that he was the judge who presided in that trial and held the term of court when said trial occurred and that appellant was arraigned and pleaded not guilty in the rape case.

The court did not err in refusing to permit the appellant in the various ways he attempted, to prove that he was acquitted in the rape case. TTis acquittal or conviction therein was immaterial on his trial for perjury herein.

Appellant objected to the testimony of Viola Johnson in one bill, quoting fourteen typewritten pages, by questions and answers, of her testimony; and, in another bill, to that part of her testimony to the effect that appellant on January 19, 1913, took her in his automobile and to his office in the Wilson Building and there undertook to have sexual intercourse with her, and again on February 13th she was in his office in said building in the' City of Dallas and that he laid her down on the floor and again had sexual intercourse, or attempted to do so, and that she was under fifteen years of age and not his wife. His objections were on the theory that these matters were in controversy on the trial of the rape case and were res adjudicata and inadmissible on this. The court did not err in not excluding this evidence, over the objections made.

Among other witnesses the State introduced Mr. Kent, who was watchman in the Wilson Building wherein appellant had his office and being the same building wherein the indictment alleged appellant had committed the acts and said and done the things he denied, etc., as charged in the indictment herein. Appellant has two bills on this subject. In one he gives substantially, in a narrative form, the whole of the testimony of Mr. Kent comprising about seven typewritten pages. In the other he gives the whole of Mr. Kent’s testimony by question and answer, embracing some nineteen typewritten pages. His objections to Mr. Kent’s testimony, in effect, is that it was irrelevant and immaterial and did not tend to establish the charge against appellant herein, or in the original rape case, and that it could have no other purpose, except to inflame the minds of the jury against appellant. We have read appellant’s bills and in our opinion the court properly overruled them. The testimony was admissible.

Appellant introduced several witnesses to prove up his general reputation for truth and veracity. Among them was Mr. Lemmon. In cross-examination, the State asked him if he investigated his moral qualities. The witness replied that he did, as well as his financial responsibility. The State then asked, “Did yon know of his intimate relations with Miss J ones, his stenographer ?” The appellant objected to this, the court sustained the objection, and the witness was not permitted to answer.

A somewhat like bill was that appellant introduced Mr. Wood, who testified to appellant’s good reputation for truth and veracity, when the State, on cross-examination, asked him if he had not heard a great many people say that they had been defrauded in buying land from him. Wood replied he had never heard any such. Hpon appellant’s objection to all this, the court promptly sustained his objections and excluded it all. Neither of these matters show any reversible error.

By some of appellant’s bills it is shown that he attempted to prove by various witnesses some specific acts of Viola Johnson, indicating perhaps intimacy with various men and that she had been arrested and convicted as a delinquent child. All this for the purpose of impeaching her.

It is well settled in this State that any witness can be impeached by showing a conviction within a reasonable time for any felony, or even any misdemeanor involving moral turpitude, but that in no event can testimony be introduced to prove guilt or specific acts for any such purpose. See see. 868, Branch’s Crim. Law, where some of the authorities are collated. The court permitted defendant, in his cross-examination of Viola Johnson, to ask her about all such matters but correctly did not permit proof by others of any such matters.

Appellant introduced his wife as a witness, who testified on direct examination, that said Miss Jones was appellant’s stenographer, had been for many years, lived with them as a member of their family, while they lived in Dallas. When she was turned over to the State for cross-examination she was asked questions about Miss Jones and her whereabouts. It may be that the State asked some questions on this line which possibly were not embraced in her direct examination. The appellant merely objected. It at first did not occur to the trial judge that the objections were made because the witness was appellant’s wife and her testimony on direct examination did not go. to such an extent as to permit some of the questions asked her. As soon as the court was made aware that this was the ground of appellant’s objection he at once stopped the cross-examination and specifically withdrew such testimony from the jury and instructed them not to consider it at all. In our opinion this presented no reversible error. It was of no material matter affecting the guilt or innocence of appellant and, even if improper, the action of the court, as explained in his qualification of the bill, shows it presents no reversible error. Miller v. State, 31 Texas Crim. Rep., 609; Hatcher v. State, 43 Texas Crim. Rep., 237; Robinson v. State, 63 S. W. Rep., 869; Trotter v. State, 37 Texas Crim. Rep., 468; Jones v. State, 33 Texas Crim. Rep., 7; Morgan v. State, 31 Texas Crim. Rep., 1; Sutton v. State, 2 Texas Crim. App., 342; Roberts v. State, 48 Texas Crim. Rep., 210.

Appellant made some objection to the court’s charge. He also requested several special charges about various matters.

As shown, appellant’s contention was that having been tried and acquitted in the rape case, he could not be tried in this case for perjury committed in the rape case; that it was putting him in former jeopardy and res adjudicata; that some of the testimony of some of the witnesses introduced on the rape case, could not be introduced on this, and that none of the testimony of the officers of his admissions, made while under arrest in the rape case, were admissible on the trial of this case. His objections to the court’s charge and the special charges requested by' him pertained to these matters. Appellant differed radically with the trial court on these questions. We think the trial court’s theory of the law and the evidence was correct and that appellant’s contentions thereabout were wrong. Hence none of these matters show any reversible error. The court’s charge followed the law and the evidence in this case and was apt and full and correct, as made by the pleadings, the evidence and the law.

We have given this case and the questions raised a thorough investigation and study. Ho question raised by appellant presents any reversible error. Hence the judgment will be affirmed.

Affirmed.