Watson v. State

5 Tex. Ct. App. 11

Opinion

Winkler, J.

The indictment upon which the appellant was tried charges ‘ ‘ that, on the twenty-seventh day of the month of May, in the year of our Lord one thousand eight hundred and seventy-seven, in the county of Harris, and State of Texas, one William L. Grissom had been duly and legally charged with the murder of- Joseph W. Brown, and had been, by Coroner William A. Daly, committed to the jail of Harris County, without bail, to answer said charge of murder; that, on the twenty-sixth day of the said month of May, in the year aforesaid, the said William L. Grissom sued out a writ of habeas corpus before the Honorable Gustave Cook, the duly and legally appointed and qualified judge of the Criminal District Court of Harris County, with full power and authority to issue said writ of habeas corpus; and the grand jurors aforesaid, upon their oaths aforesaid, do further present that thereafter, to wit, on the twenty-seventh day of the month of May, in the year aforesaid, one H. D. Watson, late of the county aforesaid, in the said county of Harris, and State of Texas', before the hearing under habeas corpus was had, but while the same was pending, wickedly contriving and intending to prevent the due course of law and justice, and unjustly to procure the discharge and bail of said William L. Grissom, then, on the said twenty-seventh day of the month of May, in the year aforesaid, in the county aforesaid, unlawfully, feloniously, and corruptly did attempt to induce James Masters to commit the offence of perjury; and that the said H. D. Watson, on the day and year last mentioned, in said county of Harris, did feloniously and corruptly attempt to induce said James Masters to commit wilful and deliberate perjury on the hearing of the said habeas corpus, and did then and there, on said last-mentioned day and year, feloniously and corruptly offer said James Masters one hundred and fifty dollars if he, the said James Masters, would, on said hearing under said writ of habeas corpus, swear and give in evidence that Doctor Brown (meaning said Joseph W. Brown) had a pistol in his hand at the time said William L. Grissom shot him, it then and there being a material question on said hearing whether said Joseph W. Brown was the aggressor; whereas in truth and in fact said Joseph W. Brown did not have a pistol in his hand at the time said William L. Grissom shot him; and that he, the said H. D. Watson, then and there well knew that said evidence he was corruptly attempting said James Masters to swear and give in evidence on the hearing of said writ of habeas corpus was false; contrary to the law, and against the peace and dignity of the State.”

The indictment is based upon article 297 of the Penal Code (Pasc. Dig., art. 1920), which is as follows : “If any person shall, by any means whatever, corruptly attempt to induce another to commit the offence of perjury, he shall be punished by imprisonment in the penitentiary, not less than two nor more than five years.”

It is neither expedient nor essential to a proper determination of the merits of this appeal that we should attempt, seriatim, a discussion of the several novel and interesting questions presented in the several bills of exception set out in the record, and the several grounds set out in the motions for a new trial and in arrest of judgment. The want of time forbids that we should do more than state conclusions as to the vital questions arising upon the record, and upon which a decision depends. This it is proposed to do in the' order and to the extent necessary, as we find them set out in the appellant’s assignment of errors, which he alleges were committed on the trial below, and which he contends are of sufficient importance to require a reversal of the judgment of conviction rendered against him.

The first error assigned is, that the court erred in admitting in evidence the petition of W. L. Grissom and the order of Judge Cook thereon, and the papers attached thereto, and to the admission of which the defendant objected on the ground, “ because it went to sustain no allegation made in the indictment, and because the order grants the writ by a different judge than the one named in the indictment.” It will be seen by reference to the indictment that the man Grissom had been charged with the murder of Joseph W. Brown; that he had been committed on the charge, and that Judge Cook, the duly appointed judge of the Criminal District Court of Harris County, had granted a writ of habeas corpus; and the bill of exceptions shows that the writ had been granted, requiring the production of the petitioner at a time and place named, that an inquiry might be made into the authority by which he was held.

In the indictment the officer is described as the “ Honorable Gustave Cook, the duly and legally appointed and qualified judge of the Criminal District Court of Harris County.” In the instrument offered in evidence, the fiat, he signs himself “ Gustave Cook, Judge, Criminal Dist. Court, Galveston and Harris Counties.” We are of opinion that the evidence was admissible, as tending to support the allegation in the indictment that the habeas corpus proceeding had been instituted before competent authority, and that there was no material variance between the style of the officer set out in the indictment and that set out in the evidence.

It is judicially known to this court that there is a criminal court for the counties of Galveston and Harris, and that Hon. Gustave Cook is the judge of that court, and is required by law to hold terms of his court at stated times in each of those counties. When discharging the duties of his office in Galveston County, he would be properly styled judge of the Criminal District Court of Galveston County, and when performing those duties in Harris County, he would properly bé styled judge of the Criminal District Court of Harris County. The court over which he presides is denominated the Criminal District Court, in contradistinction to the older and well understood District Courts, which we also know sit in Harris and in Galveston Counties, and all over the State; and when he is mentioned in that sense it would only be necessary to style him as judge of the Criminal District Court, and it would depend entirely, as to which county should be added, to consider which county the duty was required in. He is properly described as judge of the Criminal District Court.

The second assignment is, that the court erred in permitting to be read to the jury the order of Júdge Gustave Cook transferring the application of W. L. Grissom for bail to the Hon. James Masterson, judge of the Twenty-first Judicial District, for hearing and determination, as is shown by defendant’s bill of exceptions number two, and for the reasons therein stated.

The order objected to is set out in the bill of exceptions, arid, after stating the style of cause, is as follows:

“ Charged with the murder of J. W. Brown, in Harris County, on the 25th day of May, A. D. 1877: Committed by W. A. Daly, Esq., justice of the peace, and now produced before Gustave Cook, judge of the Criminal District Court of Galveston and Harris Counties, by Cornelius M. Noble, sheriff of Harris County, upon the order of said judge, on application of petitioner.

“ It appearing that the State is not ready to proceed, and the duties of the undersigned requiring his presence officially in Galveston, it is ordered, by the consent of the Hon. James Masterson, district judge, that the further consideration of the case be transferred to him; and the sheriff is ordered to have the prisoner, with the witnesses, before him instanter, at the court-house of Harris County. This May 26th, 1877.

“ [Signed] Gustave Cook,

“ Judge Criminal Dist. Court.”

The objection taken to the introduction of this order in evidence is “ because the law did not authorize such a transfer of the habeas corpus proceedings, and because the evidence was irrelevant, and did not prove any allegation contained in the indictment.”

The questions arising on this assignment are : First, Was the evidence admissible under the pleadings? and, second, Had Judge Cook authority to transfer the habeas corpus proceedings to the judge of the District Court for hearing and determination? As to this latter proposition, we may remark that we are unable to see plainly how the question of the right and power to transfer aróse in the maimer here presented; yet, inasmuch as it is a part of the record-history of the case, and necessary to dispose of it at some stage of the consideration of the case, it may be as well to meet it here as elsewhere. These questions are not free from difficulty in their determination, especially the latter. We have been afforded but little aid from elementary works or reports of adjudicated cases, and on some of the matters involved the court has not been able to fully concur; still, in the opinion of a majority of the court, the first question must be answered in the affirmative, on the ground that it is averred in the indictment that the proceeding in which the attempt to corrupt the witness is alleged was still pending at the time of the alleged commission of the offence by this appellant, —that it is only material that it was so pending before a judge having jurisdiction of the proceeding in which the attempted subornation was made. In other words, that in this connection it was only material that the indictment should show a legal proceeding pending at the time. As to the second question, we have seen no rule of law which was violated by the transfer, and, in the opinion of a majority of the court, there was no error committed in the transfer, under the circumstances set out in the order of transfer, of which the appellant can be heard to complain.

What has been said under this assignment must be held to apply to and be decisive of the question of authority to transfer, wherever it arises upon the record.

The third assignment of error, as well as the fifth, sixth, and seventh, call in question the correctness of the charge of the court, and embrace the eighth, ninth, tenth, and eleventh grounds set out in the motion for a new trial, and the corresponding bills of exception. We deem it proper to ask the consideration of the court, on another trial, whether the materiality of the testimony attempted to be procured by corrupting the witness Masters should not have been left to the jury, under an appropriate instruction. This is the only comment we have to make upon the main charge at present.

The following additional instruction was asked by the accused, to wit:

“ That the State must prove, by satisfactory evidence the offence charged and specifically set forth in the indictment, and to do this the State, by testimony, must satisfy the minds of the jurors that the defendant, in the county of Harris, on or about the time charged in the indictment, did feloniously and corruptly offer said James Masters one hundred and fifty dollars if he, the said James Masters, would on said hearing, under said writ of habeas corpus, swear and give in evidence that Dr. Brown had a pistol in his hand at the time said William L. Grissom shot him; that the jury must be satisfied from the testimony that the defendant did make the offer of one hundred and fifty dollars himself, and not that he said some one else would pay it.”

This instruction was refused, and the accused took a bill of exceptions. The legal propositions assumed in the refused instruction are (1) that the State was required to prove the offence charged as it is described in the indictment ; (2) that it would not support the allegations in the indictment by proving that some person other than the accused offered to pay the money proposed to be used in corrupting the witness.

The rule, as stated by Mr. Greenleaf, and often quoted, is : “ When a person or thing necessary to be mentioned in an indictment is described with unnecessary particularity, all the circumstances of description must be proved, for they are all made essential to the identity.” 1 Greenl. on Ev., sec. 65. This rule has been substantially followed, so far as we are advised, uniformly, both by the Supreme Court and this court. Hill v. The State, 41 Texas, 253; Rose v. The State, 1 Texas Ct. App. 400 ; Courtney v. The State, 3 Texas Ct. App. 257; Sweat v. The State, 4 Texas Ct. App. 617; McGee v. The State, 4 Texas Ct. App. 625; 1 Bishop’s Cr. Proc., sec. 486, which see for the rule and examples of variance between the allegations and proof, where it is said: “ The illustrations of this general doctrine to be found in the books are almost endless.” The questions we have heretofore been considering, when compared with the ones here presented, are of comparatively little moment. It is of vital importance to one on trial for a felony that the law applicable to his case should be given in charge to the jury, it being their bounden duty “to receive the law from the court, and be governed thereby.” Penal Code, art. 523 (Pasc. Dig., art. 3058).

It will be seen from an inspection of the record that the general charge given by the court embraces and covers all the grounds set out in the charge which was refused; not in the same language, it is true, nor in the same consecutive order ; nor was this required. Yet they amounted substantially to the same as the refused charge, except the concluding paragraph of the latter, as follows: “ That the jury must believe from the testimony that the defendant did make the offer of the one hundred and fifty dollars himself, and not that he said some one else would pay it.”

In the charge given this is the language used: “ With the intent corruptly to induce James Masters to make such statement in evidence, under oath, upon the hearing, ■* * * say to James Masters that Grissom would give him (James Masters) one hundred and fifty dollars to make the statement under oath,” etc.

The charge in the indictment is, not that the defendant said that Grissom would give the money, but that II. D. Watson offered the money. The effect of the charge given is, that proof that Grissom said he would give $150 if the witness would swear as desired would support the allegation in the indictment that the defendant offered the money. This, we are of opinion, upon the authority above cited, was error, and that such proof as that in- the charge indicated would not support the descriptive averment in the indictment, which sets out the means employed by the accused to procure the corrupt and false testimony.

We are of opinion that the pleader, in stating the means used in the effort to corrupt the witness with the particularity used in setting it out, made it incumbent on the State to prove it, at least substantially, as laid in the indictment. Whether it was necessary to charge the offence with such particularity, or not, is not now the question. What we hold is that the pleader, having stated the means employed in order to effect the criminal purpose, he must prove it as alleged. If we look to the evidence, it will be apparent that this instruction was manifestly prejudicial to the rights of the defendant. The charge of the court should have submitted to the jury the law of the case as made by the pleadings and the evidence. This he failed to do, which was error, and for this error the judgment must be reversed.

We are of opinion that there was no error in the rulings of the court upon the evidence as set out in the first assignment of error, and mentioned in bill of exception number four.

So far as the action of the court in refusing a new trial in order to permit the accused to impeach the prosecuting witness is concerned, and set forth in the eighth assignment of errors, we are of opinion there was no error. That a new trial will not be granted upon this ground is now too well settled to require a reference to authorities. For the foundation upon which the rule rests, see Whart. Cr. Law, sec. 3161; 1 Arch. Cr. Pr. & PI. 118, sec. 126 ; Terry v. The State, 3 Texas Ct. App. 236, and cases there referred to. To unsettle this rule, and permit a party to obtain a new trial, after conviction, in order to procure testimony to impeach the witness on whose testimony a conviction was had, would be to open wide the doors leading to the commission of the too frequent crime of perjury; none other than an extraordinary case would warrant it.

One other subject requires to be noticed, to wit, the sufficiency of the indictment, which is questioned in the ninth assignment of errors and in the motion in arrest of judgment. We have considered the several grounds set out in the motion in arrest of judgment, and believe they are not tenable.

An indictment for perjury, says Mr. Greenleaf, should specify the facts essential to this offence, namely: First, the judicial proceedings or due course of justice in which the oath is taken; second, the oath lawfully taken; third, the testimony given; fourth, its materiality to the issue or point in hand; and, fifth, its wilful falsehood. 3 Greenl. on Ev., sec. 189. Varying the circumstances to suit this case, and testing the indictment thereby, it must be held to meet the requirements. It contains all required by article 395 of the Code of Criminal Procedure (Pasc. Dig., art. 3863). The offence is set out with such certainty that a conviction or acquittal under it could be successfully pleaded in bar of another prosecution for the same offence, which is all the certainty required. Code Cr. Proc., art. 3-28 (Pasc. Dig., art. 2865). “ The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offence,” is the language of the Code.

We are of opinion that there was error in the charge of the court, and on account thereof a new trial should have been awarded. For this error the judgment is reversed and the cause remanded.

Reversed and remanded.