Harden v. State

Appellant comes before this court with a forcible motion for rehearing, supported by a supplemental argument, all of which have been carefully reviewed by us, as well as the original brief. Two matters are strongly urged as erroneous in our former opinion; to-wit: (1) holding the indictment sufficient; (2) holding that there was no error in refusing to give the special charge hereafter noticed; both of which contentions will be discussed in this opinion.

Learned counsel again insists that the indictment is insufficient as it does not allege that appellant was guilty of the offense of adultery, and incidental to this, further contends that no indictment for perjury before a grand jury, is sufficient unless same alleges that the accused or some one was in fact guilty in the matter under investigation by such grand jury.

In order to be accurate and that no mistake may be made, we state the contention of appellant on this point in the very language of the learned counsel, as taken from their argument in support of their motion: "To be good, it must have been alleged therein that the defendant not only made the false statements shown in said indictment, but such indictment must have gone further and alleged that the defendant, or some other person, was in fact guilty of some crime against the laws of this State, in order to render any testimony given by him before the grand jury, material in the sense required by law;" and counsel insists that the Bench and Bar of this State are in error, if this contention be not the law, and that this court owes it to them, to either admit error in its former ruling, or to overrule the decisions heretofore rendered which appellant contends so hold. This court frankly states that if it knew of any decision so holding, same would be very promptly overruled, but that the court is not aware of any decision in consonance with this position of appellant.

At the risk of repeating what we have said in our former opinion, and because of our great respect for each of the learned counsel representing appellant, we will again discuss this matter. *Page 230

As set out in the indictment in this case, the material inquiry before said grand jury at the time appellant came before it was stated to be, whether or not appellant and a woman not his wife, lived together and had carnal intercourse in Hood County, Texas, he, appellant, being then and there married to another person then living; and also whether or not appellant and a woman not his wife, had habitual carnal intercourse with each other in Hood County, Texas without living together, he appellant, being then and there lawfully married to another person then living.

The two things alleged to be the matter under search before said grand jury are the two ways in which adultery may be committed in this State, and every essential element of the offense was fully set out in each of said two methods. It is thus plain that the matter under investigation by said grand jury was one, which if sustained by facts, would be a violation of the criminal law of this State. If the facts had shown that appellant lived with the woman and had intercourse with her, he having a lawful living wife, he would have been guilty and such investigation was properly within the scope of the grand jury's jurisdiction. If such facts had established that he had habitual carnal intercourse without living together with her, he would have been guilty of adultery and the inquiry regarding same was properly cognizable by the grand jury. Having these statements in mind, let us go further and say that if the appellant had been merely suspected and charged before such grand jury with the matters stated, the jurisdiction of that body to investigate such charge would have been as certain and complete, even though an innocent conclusion was the result, as it would have been had he been indicted for a dozen acts of adultery with said woman.

Under our system, it is the business and duty of the grand jury to investigate charges made against persons suspected of violations of our criminal laws to the end that such violations may be legally formulated and charged, if the evidence presented makes it reasonably certain that upon the trial of such suspect in a court of competent jurisdiction a conviction would result. To properly protect the sanctity, dignity and purity of such grand jury investigations, it is clearly necessary that witnesses to all matters within the proper scope of such investigations, shall tell the truth under the pains and penalties of perjury. Inasmuch as there are limitations placed by our laws upon the powers and jurisdiction of the grand jury, it must be understood that the matter under search before that body, must fall within the scope of such limitations, else the investigation would beultra vires and the entire proceeding without foundation in law. We therefore observe that the matter under investigation, if sustained by facts, must be a violation of the criminal law of the land. If the investigation be of such nature, the demand of truth from the witnesses is as imperative when the conclusion resulting therefore *Page 231 from, is that the suspect is not guilty and that no indictment should be returned, as it would be if every step of the investigation was so eloquent of guilt that no other conclusion could follow than the return of an indictment. The question throughout is a jurisdictional one, and the test of the indictment in all the cases cited by learned counsel was as to the character of the charge under investigation in the particular case, and the test was not in any of those cases the guilt of any party or suspect. In those cases referred to by counsel the courts held the indictments bad, not because some person was not guilty of the charge under search, but because in each instance the grand jury or court had no authority to make the particular investigation for the reason in each case that the charge — the matter — the thing under search, was one which was innocent of the law, that is, not such as would constitute a violation of a criminal law, even if true and borne out by facts.

Recurring to the instant case, and applying what we have just said it seems plain that if the matter alleged as being under investigation by the grand jury, to-wit; whether appellant lived together and had intercourse with the woman, or whether he had habitual intercourse with her without living together, he being married to another woman then living, was one which, if found by investigation to be true and borne out by facts, should have resulted in an indictment or would have been a violation of a criminal law, then the conclusion is irresistible that it was a matter of which the grand jury had jurisdiction, whether in fact the appellant was thereafter believed by them to be a proper subject of indictment or not, and wholly regardless of whether he was in fact guilty or not.

We but repeat, when we say that the language in the indictment showed that the charge under investigation was one which, if true, would be adultery and the violation of a criminal law of this State, and therefore a matter of which the grand jury had proper jurisdiction.

Appellant further contends that the following special charge should have been given:

"Now comes the defendant in the above entitled cause and requests the court to instruct the jury that unless they find and believe from the evidence that the written statement of the defendant Gat Harden, taken before the grand jury and introduced before you by the State, was freely and voluntarily made, you will consider such statement for no purpose whatever."

We were in error in our former opinion in passing upon this particular matter, in stating that appellant was not asked to go before the grand jury. He was not subpœnaed or brought there by any process, but the record shows that he had that morning expressed to the district attorney a desire to see the foreman of the grand jury, and that at the request of some member of the grand jury, a baliff told appellant to go before that body which he did. *Page 232 When he appeared before them he was sworn and some questions asked him by the district attorney, whereupon appellant substantially stated that he declined to testify, thereupon the district attorney told him that if his testimony before the grand jury would incriminate him, or if his evidence would be against him in any way, or if he had done anything wrong the telling of which before the grand jury might be the means of getting a bill against him he would not have to testify. Thereupon appellant said he wanted to see a lawyer and was told that the district attorney was one and he said that his testimony would not incriminate him and that nothing he had done with the woman was a violation of the law, that he had done nothing that was wrong and his testimony would not hurt him. The district attorney also told him what he meant by incriminate, and that he did not have to testify and further that if his testimony would incriminate him he could leave the room. Appellant did not leave, but stayed, apparently being desirous of giving his version of the matter. After giving him the statutory warning which was embodied in his written and signed statement, he was asked questions and made a lengthy statement in writing denying all intimacy with the girl and denying in particular the various matters alleged in the indictment. After this statement was reduced to writing it was read over to him. He suggested a number of changes which were made and he then signed said written statement. A number of the details of this written statement are alleged to be material to the main issue before the grand jury and are set out in the indictment.

We further note that when this written statement was offered in evidence by the State it was admitted without objection on the part of appellant.

In this state of the case, after reviewing the authorities cited by the appellant, in our former opinion we held there was no evidence before the trial court sufficiently calling in question the voluntary character of the statements of the appellant to make the issue as to whether they were voluntary or not, a jury question. Upon further examination of the facts, while we conclude that it is without dispute that appellant remained in the grand jury room of his own accord and made and signed a written statement without any sort of compulsion or lack of freedom and further that the charge would have been erroneous for this reason, yet we have concluded that this contention of appellant should be further disposed of for a different and greater reason.

Can one on trial for perjury alleged to have been committed before a grand jury, or a court either, for that matter, have the case decided on the question as to whether the alleged false statement was freely and voluntarily made or otherwise? Is it sound law, reason or right, when one under oath has been even wrongfully required to answer a question, to hold as law the proposition that *Page 233 by reason of the fact that he answered such question under compulsion, he is thereby licensed to answer falsely? Is it sound to hold that if in such case he be called to account for making a false statement that he may justify and excuse the falsehood upon the sole ground that his speech was not voluntary? It would be a sad day for he administration of the law if a defendant, having placed himself or having been placed in the position of having been ordered or directed to answer, may thus destroy the power and effectiveness of our perjury statute.. Such is not the law.

The men who wrote the perjury statute, stated in chapter 1, title 8 of our P.C. that if a false statement, under an oath required by law, be made deliberately and wilfully the same is perjury. They wrote further that if the statement alleged to be perjury was made through inadvertence or through mistake or any agitation, then same would not be prejury, but there the lawmakers stopped, and there is not a line or a syllable in our written law which, after giving to an accused the benefit of a charge that his act must have been deliberate and wilful, and that it must not have been the result of agitation, mistake or inadvertence, requires the court to go further and tell the jury that unless the alleged statement was freely and voluntarily made it could not be perjury. The paramount inquiry in every case is, what is the truth; and the courts have existed and all legal formatities have been created out of the experience of the years as being the very best means of getting at this one great end. We wish to write here now that one must tell the truth in every judicial proceeding, even when he speaks under compulsion. He has the right under our constitution and law not to speak, under given circumstances which are well understood, and in such case if effort be made to illegally compel him, the courts are ready and willing to accord substantial and speedy relief, but whenever for any satisfactory reason he does speak, then he must speak the truth. We further held that if in any case it be decided that his utterance was wilful and deliberate and was not made under the broad exceptions of our written law, and was false, then this court is unwilling, by judicial construction to engraft any other exceptions upon our procedure then those written by the lawmakers. Especially in this true when we believe that the principle contended for in this special charge is substantially embraced by the exceptions already written into our law. The language used by our law-makers is that the statement must be wilful and this means that it must emanate from the will of the accused and not from the will of another; and the two words "wilful and deliberate" have been construed to mean that the accused must have known the statement to have been false and so knowing himself have deliberately and wilfully made the same. In the instant case this phase of the case was fully covered by the charge and no complaint is made thereof. What we have said above is not intended to apply to a *Page 234 case properly embraced under our statute regarding statements under duress.

Believing that no serious error was committed by the court in its former opinion and that the law was properly charged in the case by the trial court and that the indictment was good, the motion for rehearing is overruled.

Overruled.