The State contends that the writer erred in the original opinion in holding that if the offense had been consummated it would have been perjury and not false swearing. Several reasons are assigned in the State's motion for rehearing, in substance, as follows: There is no evidence sufficient to show that the affidavit, "if same had been actually procured, was intended to be attached to the motion for new trial," the only evidence bearing on this subject being the testimony of Marshall to the effect that at the first suggestion of his making such an affidavit a statement was made either by Shipp or Harwell that he was the only man who could procure for Cunningham a new trial of the cause which had been decided adversely to him in the Forty-fifth Judicial District Court of Bexar County, and said testimony did not include the statement that this affidavit, if procured, would have been attached to the motion for new trial; and for the further reason that it not being expressly shown that said affidavit, *Page 342 if procured, was intended for use upon the motion for new trial. The writer has reviewed this case in the light of the State contention and can not agree with it. The second count of the indictment alone was submitted, which undertook to charge an attempt on the part of appellant to suborn Marshall to file a false affidavit in connection with the motion for a new trial in the damage suit between Cunningham and the railway company in the Forty-fifth Judicial District Court of Bexar County. That there may be no question about this matter a reference to the indictment shows that after setting out the testimony of Marshall delivered in the damage suit between Cunningham and the railway, and the allegation of its truthfulness, the following quotation is made from the second count:
"And that thereafter, on towit: the 2nd day of February, A.D. 1916, while a motion for new trial in behalf of said plaintiff, S.P. Cunningham, was pending in said District Court of Bexar County, Forty-fifth Judicial District of Texas, and in the County of Bexar and State of Texas, S.E. Shipp did unlawfully, wickedly, designedly and corruptly solicit, instigate and endeavor to persuade and attempt to induce the said witness, Earl Marshall, by then and there corruptly offering to give to him, the said Earl Marshall, two hundred and fifty ($250) dollars in money, to make, and if he would voluntarily make under the sanction of an oath duly administered to him by a person and officer having authority to administer the same, his declaration and affidavit to a certain false statement in writing, the purpose of which said false statement was that it be used before the said District Court of Bexar County, Forty-fifth Judicial District of Texas, in connection with a certain motion for a new trial filed by said plaintiff, S.P. Cunningham, in the said cause No. B-4465, S.P. Cunningham versus San Antonio Aransas Pass Railway Company, and which said false statement was by the said S.E. Shipp intended to be made and intended to be secured from the said witness, Earl Marshall, during the pendency of the said civil proceeding of S.W. Cunningham versus the San Antonio Aransas Pass Railway Company, and was intended to be used during the course of such judicial proceeding in said District Court of Bexar County, Forty-fifth Judicial District of Texas, and said false declaration and statement was as follows, towit:" Then follows the proposed affidavit, set out in haec verba.
The first count undertook to charge that attempt was made to suborn Marshall to commit false swearing. As it was not submitted by the court it will not be considered or discussed. Had the affidavit been obtained and filed with the motion for new trial as set out in the indictment to be used in said trial on the motion for new trial in the pending case, there could be no question that it would be in a judicial proceeding, and this indictment charges it was intended to be obtained to be used in connection with that pending motion for a new trial. If that affidavit had been filed in connection with the motion for new trial, it would have been filed in the pending civil proceeding in the District *Page 343 court. That question is not debatable. Whether it would have been used as evidence or not is not necessary to discuss. It was intended to assist in obtaining a new trial for Cunningham. If it was obtained in connection with and to be used in the motion for new trial and had been filed, it would have been in a judicial proceeding. This is charged in the indictment. It could have been used as evidence had it been filed, for our statute expressly provides that the court may hear evidence on motion for new trial either by affidavit or otherwise. If that affidavit had been filed it was a direct contradiction of Earl Marshall's testimony delivered in the civil case set out as being true in the indictment. The statute with reference to perjury not only provides that such instrument shall constitute the basis of perjury, but the statute with reference to false swearing expressly provides it shall not be false swearing. It will be noticed that the motion filed by the State, among other things, says it is not alleged that the affidavit was to be attached to the motion for new trial. The fact that a paper filed in a judicial proceeding is or is not attached to a certain other document does not affect the question of perjury. It is the falsity of the paper that is to be used that is the criterion, and the mere fact that it is or is not attached to some other paper in the case does not affect the falsity of the document. The indictment does allege it was intended to be used in connection with obtaining the motion for new trial, and the writer regards the contention of the State that it was not expressly alleged that it was to be attached to the motion as a play upon words, and it is unnecessary to discuss it. The writer is the more firmly convinced after a review of the matter that the second count undertakes to charge only an attempt to procure subornation of perjury. The first count did not. It only charged an attempt to suborn the witness to commit false swearing.
Another clause of the motion for rehearing uses the following language: "The court in said opinion errs in holding that the clerical error of the trial court after defining and submitting all definitions only submits subornation of false swearing; in fact, changed the submission of the case by inadvertently, through clerical error, referring to the wrong count in the indictment." The writer can not agree with this statement, and will use the language of the court below in submitting the case to the jury to show the State's motion is in error. The beginning of the charge is in the following language: "In this case the defendant stands charged by indictment with the offense of attempting to induce one Earl Marshall to swear falsely, as charged in the second count in the indictment, and to the statement therein contained, said offense alleged to have been committed in the County of Bexar," etc. In another portion of the charge after giving the definition this language is found: "As heretofore related to you, and as charged in the second count of the indictment herein, for which the defendant is now upon trial which said offense is defined by statute as follows:" etc. Again, in submitting the case to the jury the court says: "Now, if you believe *Page 344 that the defendant, S.E. Shipp, was present at the time it is alleged in the indictment that an attempt was corruptly made to induce the said Earl Marshall to make a false affidavit, and if you believe from the evidence beyond a reasonable doubt, that defendant, S.E. Shipp, did not aid or encourage . . . to commit the offense alleged in the second count of the indictment, or if you have a reasonable doubt about this, then you will find the defendant, S.E. Shipp, not guilty."
The court's charge was given appellant's counsel as required by the statute before it was read to the jury, to which counsel noted exceptions. The second ground of objection to the charge is in the following language: "Because the court submitted to the jury alone the second count of the indictment and does not define or attempt to define what constitutes in law attempted subornation of perjury." Third, "Because the court, after telling the jury that the case is submitted to them upon the second count in the indictment alone, proceeds to define the offense with which the defendant is charged and tells the jury that the offense charged is attempted subornation of false swearing." Again, he excepted to that portion of the charge given by the court already mentioned above in the following language: . . . "and because the second count in the indictment attempts tocharge attempted subornation of perjury and not attempted subornation of false swearing, and is upon the weight of the evidence." The tenth ground of exception is: "Because the court in the charge attempts to define false swearing and subornation of false swearing when the defendant was not indicted for said offenses, and same were not issues in the case, and the court should not have charged on false swearing and subornation of false swearing." The twelfth ground is: "Because the court in his charge to the jury all through the charge and in a number of places in the charge refers the jury to the second count in theindictment and tells the jury that they will consider the secondcount alone and the second count of the indictment chargesattempted subornation of perjury and does not charge the defendant with attempted subornation of false swearing and then having told the jury that they are to try the defendant upon thesecond count, the court proceeds to charge the jury upon the first count," etc.
These exceptions to the charge are only quoted in response to the statement in the State's motion for rehearing that the court through "inadvertence," submitted the second count. The writer is of opinion it was not inadvertence. There were too many exceptions and repetitions by the court to undertake to say it was through inadvertence. I do not understand from all these matters directly called to the court's attention how he inadvertently overlooked all of those things. The exceptions to the charge were pointed and specific. The writer would not suppose for a moment that the court intended to do the wrong thing through inadvertence or any other way. He indulges the statement that the court believed he was right in what he was doing and that after his attention was called to it he still adhered to his belief that *Page 345 he was correct in submitting the second count of the indictment. It is mistakes and inadvertence committed in the trial of cases that brings about reversals. The writer does not believe the trial judge would deliberately submit the law of the case wrong, and he indulges here no such presumption. The matter was too pertinent and too often called to his attention to cause it to be charged as being inadvertence. But the other proposition is the correct one, that he did submit the second count, and that he did it deliberately under the full belief on his part that he was right about the matter. The theory of the State, as I understood on the first submission of the case, was that the second count did not charge an attempt to induce the witness to commit perjury but false swearing, and that the second count so charged. It is a well settled proposition of law and does not require a citation of authorities at this late date, that the selection of a count in the indictment by the court in its submission of the charge to the jury, confining the law as he applies it to the case in the selection of this count, is binding upon the State, and is an election where there are two or more counts. This matter underwent investigation in Parks v. State, 29 Texas Crim. App., 597. If there is a contrary decision in Texas it has escaped the attention of the writer.
The original opinion is said to be erroneous in that this court reversed the judgment because the court below did not charge the law applicable to accomplice testimony. This case did call for a charge on the law of accomplices. See Davis v. State,70 Tex. Crim. 524; Smalley v. State, 59 Tex.Crim. Rep.; Branch's Ann. Statutes, p. 421, and cases cited in sec. 766. The Davis case overrules the O'Brien case in 6 Texas Crim. App., 665. Whether the two cases are in conflict is not necessary here to discuss. While the indictment charges an attempt to suborn a witness to commit perjury, yet that proposition is based entirely and exclusively upon the idea that appellant proposed to bribe Earl Marshall to make an affidavit to assist Cunningham in the civil case to obtain a new trial. That is the State's theory of the case. If that is true that would be an attempt to bribe a witness to swear falsely as the State contends, but had he so sworn it would be perjury. If Marshall accepted it or agreed to accept it he would be criminally corrupt. If as contended by appellant, Marshall made the proposition to him to give him so much money to make the affidavit and that he, Marshall, would then leave the country. Appellant's testimony conveys the idea that Marshall sent for appellant and his brother-in-law, Harwell, and made them the offer to accept the money to leave the country. Quoting from appellant's testimony, after narrating the fact that at the request of Marshall he and Harwell went to Marshall and after reaching the point designated he says: "Nevertheless he stood there and talked a little bit and Harwell asked Marshall what was the nature of this thing or what he wanted, something to that effect, and Marshall said: `I am going to make a statement to Harwell, do you want to be present and witness it?' or *Page 346 something of that sort, and I replied, `I don't understand it.' Marshall said, `Come inside and I will tell you, come right into this inner room here.' And I went into the inner room with Marshall and Harwell, and Marshall said: `Now I want to get out of this country, I want to go back to the old country and I want to make a good clean truthful statement to your brother or to you,' and I said to him, `All right, what is the nature of the thing going to be?' And he says: `Well, I haven't got time to explain it all to you now,' and I said, `Well, have you got anything to do or anything, there is no use fooling around about it, let's go ahead and let me know what you have got.' We stayed there and talked a while and during the conversation he told me that he wanted to go back to the old country and said he was not in shape to get back to the old country, and I said, `You are going to make a good clean truthful statement, are you?' and he said, `Yes,' and I said, `Well, I will tell you, Marshall, what would it take to get you back to the old country?' He said he didn't know what it would take, . . . I positively didn't request or ask Marshall to make a false statement. I was not trying or undertaking to get a false statement from Marshall. He wanted to make a statement and I understood he was going to make a truthful statement."
This testimony shows the matter was not arranged at this conversation, and meeting and that they made another meeting at a different point in the city at the instance of Marshall on the following day. They met and the matter was discussed, and the parties were arrested. Whether appellant was innocent in the transaction or not, the issue was raised as to whether Marshall made the proposition or they made the proposition with reference to inducing him to make the affidavit If Marshall went into the matter willingly and agreed to accept the money, it would show that from his viewpoint he was to make a false affidavit in order to obtain for Cunningham a new trial and at the instigation of Harwell and appellant. If appellant's side is true, Marshall made the offer to them, and debating it these conversations occurred. Although the indictment charged an attempt to obtain a false affidavit to be used on the motion for new trial, yet it was an offer to bribe Marshall, who had been a witness in the original trial, now to commit perjury by making an affidavit showing that all of his former testimony was false. This matter was pretty fully discussed in the Davis case, supra, by Judge Harper. It is unnecessary here to discuss the question involved had Marshall been innocent in the transaction and had not agreed to accept the offer. His theory of it was that he was trying to entrap Harwell and appellant. That is the State's theory, but that is not the defendant's side of the case, and although Marshall may have said that he was trying to entrap them, there must have been some reason why he wanted to entrap them. He had testified he said truthfully on the other trial, and these parties seemed to have no particular interest in this case, and Shipp swears positively he did not have. The conclusion might be deduced that Marshall was a man who could *Page 347 be easily approached and induced to commit perjury if sufficient money was put up, but that did not show the innocence of Marshall.
Another proposition involved here which the writer does not purpose further to discuss than to make a mere allusion. The motion for rehearing contends that the court was wrong in holding that the State would be required to prove the truthfulness of Marshall's evidence as alleged in the indictment, and was also in error in holding that it was not necessary to prove that the entire affidavit was false. These matters were alleged in solido, and the State having seen proper to so allege, it became incumbent upon the prosecution to so prove. Enough was said, we think, with reference to this matter in the original opinion.
One other question will be noticed. The indictment alleged specifically a particular amount of money offered the witness Marshall to change his testimony and swear falsely. The court did not confine the charge to this allegation, but instructed the jury if they should believe that appellant "by any means" sought to induce Marshall to commit perjury he would be guilty. That is not the law. Having elected to charge specifically the attempted means to induce the false affidavit, the State would be bound by such allegation. The court could not submit the theory of conviction on any other consideration.
Believing the original opinion to be correct, the motion for rehearing by the State is overruled.
Overruled.
PRENDERGAST, JUDGE, dissenting.