Appellant was convicted of perjury, and his punishment assessed at confinement in the penitentiary for a term of two years.
The State relied upon the alleged false statements made by appellant on the trial of Dock Baines for assault with intent to murder Minnie Freeman, in this: that he swore he did not pick up a portion of a certain newspaper called the "Ram's Horn," in the yard where Minnie Freeman was shot, immediately subsequent to the shooting of Minnie Freeman. The shooting occurred at night. It is not necessary to further state the evidence upon which the perjury was assigned. Arthur Freeman was used as a witness in the defense of Dock Baines.
J.B. Keith, Esq., who was one of Baines' counsel, on this trial was permitted to testify that the purpose of himself and counsel in using appellant as a witness in behalf of Dock Baines was to prove by him that the piece of paper picked up by him in the yard of J.C. Freeman, the night Minnie was shot was not torn in the same way as the one introduced in evidence, and that it was not the same piece of paper. Exception was reserved to this testimony because it was the conclusion and opinion of the witness and because the reason actuating counsel for Baines placing appellant on the stand in Baines' behalf could not bind defendant; and, whatever may have been their object or purpose, it in no way bound appellant, or could be admissible against him; and he *Page 498 could not be made to suffer for the acts, purpose, and intent of Baines' counsel in placing him on the stand. The bill of exceptions is qualified as follows: "That the witness testified further that, prior to putting Freeman on the stand in the Baines case, he talked to him about what his evidence would be."
"The reason and purpose, as well as the admissibility, of evidence is, we think, apparent. Our code declares that a false statement, made through inadvertence, or under agitation or by mistake, is not perjury. Now if, from the information derived previously from the witness, the attorney was induced to call him upon the stand to swear to the facts to which he did testify, it stands to reason that such statements, when thus sworn to, could not have been made through inadvertence, nor have been the result of agitation or mistake." Washington v. State, 22 Texas Crim. App., 26. Under this authority the action of the court was correct in admitting the testimony.
We believe the charge of the court as given sufficiently presented the issues arising under the testimony, and therefore there was no error in refusing the requested instructions. There being no error in the record, the judgment is affirmed.
Affirmed.
ON REHEARING.