Schley v. State

181 S.W. 470, 78 Tex. Crim. 250, 1915 Tex. Crim. App. LEXIS 251

Opinions

DAVIDSON, Judge.

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

A brief summary of the 'State’s evidence discloses that Ashford and Smith were in the town of Gatesville on Saturdajr, the 5th of the month, and while there passed two forged cheeks made payable to Preston, signed by McMordie. Mc-Mordie is sheriff of the county. They were strangers in the town, therefore the question of identity became one of more or less importance. The State’s ease was that they were acting together in passing the checks, one on Greenburg and the other on Tom Davidson. Both Davidson and Greenburg were merchants. The evidence shows they bought a lot of things from these two merchants and went their way. On the following Tuesday they were arrested in Hamilton and some of the purchased goods found in their possession. Their theory was, and they introduced evidence to prove it, that they were in Waco on the 5th and not in Gatesville. They were identified as being the men in both places sufficiently to sustain the State’s view ■and sufficiently to have shown their absence from Gatesville. Appellant was a witness in the Joe Smith case, — not in the Ashford case. On the trial of Smith appellant testified that neither of the parties in Gatesville who were supposed to have passed the forged checks were Ashford or Smith. He further testified he was in Greenburg’s house when the mátters occurred in there incident to and connected with the passing of the forged instrument on Greenburg. This was shown to be false by several witnesses, two or three of whom saw appellant that evening a number of miles distant from the town of Gatesville in company .and working with A. J?. Wylie. It is also shown by the parties in Greenburg’s store that appellant was not in there. The real question around which the perjury revolves is the alibi of the two men who were supposed to have been Ashford and Smith. That was the central thought of the defense, and it was this defense that attacked the State’s ease of their presence in Gatesville and their criminality with reference to the forged checks. The indictment narrates these matters and charges with sufficient plainness and accuracy that 'the question was alibi, and the testimony which was set out as given by appellant was false. We think the indictment sufficiently charges the offense, and was not subject to demurrer.

There were some bills of exception reserved to the introduction of certain testimony. These bills were quite lengthy and set out to a large extent all the testimony of each witness, to the introduction of which the defendant objected. The bills might be passed out by stating they are so general they do not present any question for review, but passing from that question, a great deal of the testimony set out in the bills of exception was clearly admissible, if not all of it. It is a general rule, and almost without exception, that where bills of this character set out a great deal of testimonjr, some of which is objectionable, and some of which may not be, that the bill must specifically point out that against which objection is urged. These objections are general and to the whole of the testimony. A discussion of the bills and statement of the evidence would demonstrate the accuracy of this statement, but it would serve no useful purpose either'.to the bench, the legal profession or jurisprudence of Texas.

The stenographer was introduced as a witness lO- reproduce the testimony delivered on the Smith trial, and over objection he did reproduce it. The main objection is, that the written testimony was the best evidence. The bill is very lengthy, and the court qualifies it in lengthy form, but the substance is that in the Smith ease the stenographer took the notes but did not transcribe them inasmuch as Smith apon his conviction appealed to the Court of Criminal Appeals without a statement of facts, therefore the testimony was never transcribed or put in form on the typewriter. The stenographer made it clear from his. statement that he recollected the testimony independent of his stenographic notes, but had his stenographic notes, and that they were correct as taken at the time, and the testimony he took down in shorthand was correct. This question has been before the court quite a number of times, and from any standpoint of it we do not think any valid reason is shown why the court committed error. Judge Ramsey in rather an elaborate opinion in Smith v. State, 60 Texas Crim. Rep., 293, discussed these matters fully and thoroughly, and reviewed the cases, both criminal and civil. It is unnecessary to discuss the question, for that case decides the entire matter adversely to appellant. Reviewing this entire record, specifically and generally, it occurs to us. appellant has not been deprived of any legal rights, and that the court was rather cautious and careful in his trial.

The judgment is, therefore, affirmed.

Affirmed.