Weeaks v. State

289 S.W.2d 758, 163 Tex. Crim. 226, 1956 Tex. Crim. App. LEXIS 1037

Opinions

WOODLEY, Judge.

The conviction is for perjury; the punishment, two years.

Perjury was assigned upon the testimony of appellant given on June 21, 1954, in a cause pending in the district court of Kendall County, Texas, wherein he was sworn as a witness in his own behalf and testified that he had never been convicted of a felony in the State of Texas or any other state in the United States, whereas in truth and in fact he had been convicted of felony theft in Caldwell County, Texas, in October 1953.

The indictment alleged that in said cause appellant was duly and legally charged by indictment in the district court of said county “with, having obtained money, goods, with intent to defraud, by giving, drawing check, draft or order without sufficient funds, as alleged in the indictment, and of which said judicial proceeding the said court then and there had jurisdiction.”

It was further alleged in the indictment that issue was joined before the judge, the defendant having waived the right of a trial by jury.

Art. 408 V.A.C.C.P. provides, in part:

“* * * and it is not necessary in such indictment to set forth the pleadings, records or proceeding with which the false statement is connected, nor the commission or authority of the court or person before whom the false statement was made; but it is sufficient to state the name of the court or officer by whom the oath was administered with the allegation of the falsity of the matter on which the perjury or false swearing is assigned.”

The rule appears to be that the indictment must directly allege that the court had jurisdiction of the judicial proceeding in which the perjury was committed, or it must allege the facts which clearly show such jurisdiction, either mode- of showing jurisdiction being sufficient. Branch’s Ann. P.C., Sec. 835, p. 470; State v. Webb, 41 Tex. R. 67; State v. Oppenheimer, 41 Tex. R. 82; Cox v. State, 13 Tex. Appeals 479; Powers v. State, 17 Tex. Appeals 428; Anderson v. State, 18 Tex. Appeals 17; Green v. State, 86 Tex. Cr. Rep. 556, 217 S.W. 1043.

Upon the trial, it was established that appellant waived a jury and pleaded guilty, and it was stipulated that the court had jurisdiction of the cause in which appellant testified that he had never been convicted of a felony.

In view of this stipulation, it was not necessary for the state to establish that the offense for which appellant was on trial on June 21, 1954, was a felony.

An issue, if not the sole issue, to be determined by the judge was the punishment to be assessed, appellant having pleaded guilty. Evidence to the effect that appellant had never been previously convicted was material on this issue and especially upon the question of whether or not he should receive the benefits of the Adult Probation and Parole Law, Art. 781b V.A.C.C.P.

The record shows that probation was in fact granted to appellant.

Said Article 781b V.A.C.C.P. provides that the court shall have power, after conviction or a plea of guilty — where the defendant has not been previously convicted of a felony — to suspend the imposition or execution of sentence and grant probation.

Upon his perjury trial, the plea of insanity was urged, which was submitted to the jury and by them rejected.

The state’s proof established that the testimony assigned as perjury was given and that it was false, the truth being that he had been previously convicted as alleged in the indictment.

In appellant’s brief we find various complaints regarding the court’s charge. None of these matters are before us, no objections having been timely filed and exceptions reserved.

The absence of such objections to the charge also disposes of the contention that the burden of proving insanity of appellant shifted to the state when his temporary commitment to the Texas State Hospital for “observation and/or treatment” was shown.

An issue was made and there was testimony pro and con on the issue of insanity. There is, however, sufficient evidence to sustain the finding of the jury that appellant knew right from wrong and was sane at the time he gave the false testimony on June 21, 1954.

The judgment is affirmed.