Appellant contends that the original opinion herein holds in effect that a person may be convicted of perjury on circumstantial evidence alone. This is true. If there is any uncertainty that the original opinion does not so hold, we now expressly do so hold. This doctrine has been expressly and repeatedly so held by this court.
In Plummer v. State, 35 Tex.Crim. Rep., this court, through Judge Hurt, said: "These requested charges are based upon the proposition that perjury can not be proved by circumstantial evidence, and that there must be at least one credible witness, corroborated as the law requires, swearing positively to the statement assigned for perjury. The statute (Code Crim. Proc., art. 806 [746] [786]) requires that the falsity of the statement be established by the testimony of two credible witnesses, or by one credible witness strongly corroborated. We hold that the falsity of the statement can be established by circumstantial evidence, but this must be done by the testimony of at least two credible witnesses, or by one credible witness strongly corroborated, as the law requires. In all criminal cases the guilt of the accused can be established by circumstantial evidence. Why can not the falsity of a statement in a perjury case be established by the same character of evidence? The difference between other cases and perjury cases is this: While one witness may *Page 499 be sufficient to establish the guilt of the accused in other cases, the law requires two credible witnesses, or one credible witness strongly corroborated, in perjury cases. It is not the character of the proof that is contemplated by the statute, but the number and character of the witnesses."
In Beach v. State, 32 Tex.Crim. Rep., this court, through Judge Simkins, held: "But counsel insist, that one can not be convicted of perjury upon circumstantial evidence in Texas, because the Code declares, that `in trials of perjury, no person shall be convicted except upon the testimony of two credible witnesses, or upon the testimony of one credible witness corroborated strongly by other evidence as to the falsity of defendant's statement made under oath, or upon his own confession in open court.' Code Crim. Proc., article 806 (746). It was decided by this court, that in order to convict of perjury, it is not required in every case that the two witnesses must swear directly adversely to the fact or facts sworn to by the defendant, but it is sufficient when the facts sworn to by said witnesses, if true, conclusively demonstrate defendant's guilt. Thus, if the facts so sworn to, if true, show that defendant must have been ignorant of the matter about which he swore, it is sufficient to sustain a conviction (Maine's case, 26 Texas Crim. App., 14); or when the facts testified to by said witnesses conclusively show as true that defendant swore contrary to what he necessarily knew to be the truth. United States v. Wood, 14 Pet., 430; 2 Bish. Crim. Proc., sec. 932. There is perjury as `to delay' and `reasonable expectation of procuring attendance of witnesses' except by circumstantial evidence, and if perjury can be assigned at all (of which we have no doubt) on these statements, they must be proven by facts conclusively showing their falsity."
In Franklin v. State, 38 Tex.Crim. Rep., this court, through Judge Henderson, said: "Appellant contends that the proof was of a purely circumstantial character, and that, under our statute, a conviction of perjury can not be had on circumstantial evidence alone, and cites us to the statute on this subject (article 786, Code Criminal Procedure), and to Kemp v. State, 28 Texas Crim. App., 519. Said decision is a construction of the article in question in accordance with the contention of appellant. This construction appears to have been overruled in Beach v. State, 32 Tex.Crim. Rep., and Plummer v. State, 35 Tex.Crim. Rep.." This doctrine is also approved by this court in Rogers v. State, 35 Tex.Crim. Rep., and Maroney v. State, 45 Tex.Crim. Rep..
Appellant cites to the contrary Kemp v. State, 28 Texas Crim. App., 519, and Waters v. State, 30 Texas Crim. App., 284. It is true, without any discussion, the doctrine contended for by appellant was announced in these two cases. But as said by Judge Henderson in the Franklin case, supra, the Kemp case was overruled, and we say that, in addition, the Waters case was also overruled. In order that neither of these cases may be considered as establishing the doctrine that perjury can not be proved by circumstantial evidence alone, both of those cases are here *Page 500 expressly again overruled. Appellant cites as sustaining his contention Billingsley v. State, 49 Tex.Crim. Rep., 95 S.W. Rep., 520; Cleveland v. State, 50 Tex.Crim. Rep., 95 S.W. Rep., 521; Conant v. State, 51 Tex.Crim. Rep., 103 S.W. Rep., 897, and decisions of other courts. These cases from this court, cited by appellant, do not sustain his contention and are not contrary to what we hold in this case. We deem it unnecessary to further discuss the question.
Appellant complains in this court and by his motion for rehearing of an omission in the court's charge to define what is a credible witness. This case was tried after the Act of April 5, 1913, amending articles 735, 737, and 743, and adding article 737a had been in force. No objection was made in the court below to the court's charge now complained of and no special instruction on the subject was there requested; so that it is too late to raise the question in this court and, under the law, as it now is and was when this case was tried, we can not review the question.
The only other contention he now makes is that as he was tried for an assault with intent to murder and swore therein that he did not commit that offense, and was acquitted of that offense, he can not now be convicted for perjury committed by him in the trial of said cause, contending that he is being tried again for the same offense. In other words, he contends, as we understand him, that former jeopardy attached. He filed no plea in the lower court in any way pleading former acquittal. The only way such a question was even suggested or intimated, is an unsworn motion to quash the indictment from which possibly he thinks such suggestion may have been made. This could in no sense be considered a plea of former acquittal. Such pleas as the statute requires (art. 572, C.C.P.) must be in writing, and (art. 573)shall be verified by the affidavit of the defendant. Nothing of the kind was done in this case. Even if it had been, it could not possibly be held to be a good defense in this case. The facts are: On the night of June 13, 1912, America Jones was shot while lying on her bed in her house; the shot was fired by someone in the dark outside of her house, through a window. Thereafter appellant was duly indicted, charged with that assault with intent to murder and tried therefor on September 17, 1912. He falsely swore in that case that he did not shoot said America Jones as alleged against him. His testimony in that case was, as in this, unquestionably shown to be willful and deliberate, and knowingly false. By reason, doubtless, of his said false testimony in that case he secured an acquittal. The penalty for an assault with intent to murder is confinement in the penitentiary for not less than two nor more than fifteen years. For perjury not less than two nor more than ten years. The assault to murder was committed on June 13, 1912. The perjury was committed by appellant in a trial had in the District Court on September 17, 1912. The Constitution and statute are that no man shall be put in jeopardy twice for the same offense. By no stretch of the imagination can an assault with intent to murder committed on June 13, 1912, be held to be the same offense, or anything akin to it, as perjury committed on *Page 501 September 17, 1912, even though the perjury is committed on the trial of the assault to murder case. Such a doctrine contended for by appellant could not, for one moment, be sanctioned by this court as correct. Here it is established without doubt and without question that appellant in the dead hours of the night, with his gun, a deadly weapon, crept up to within shooting distance of his intended victim, who was lying upon her bed in her own house, and attempted to assassinate her by shooting her through the body; and soon thereafter, stated to four or five separate and distinct witnesses that he had shot, and intended to kill her, and he fled, and attempted to make his escape. Afterwards, he was caught by the officers, duly indicted and tried, and by his perjured testimony secured an acquittal of his dastardly assault to murder and intention to assassinate his victim. Then to hold that because he escaped merited punishment for his first crime, he should go scott free from his crime of perjury, would be monstrous indeed. We deem it unnecessary to further discuss the two offenses to demonstrate that they are not the same and by no stretch of the imagination could be construed to be the same. See Branch's Criminal Law, sec. 398, and sec. 18 of Judge White's Ann. C.C.P. Also the notes under the constitutional provision in Harris' Texas Constitution, p. 119 et seq. The motion is overruled.
Overruled.