In the absence of a request or exception made at the time of the trial, the failure of the court to instruct the jury upon the quantum of proof required to establish the offense of perjury is not available upon appeal. The precedents cited by the appellant upon the subject are controlled by the statute as it formerly existed. Under the present statute, Art. 666, C. C. P., 1925, an omission in the charge of the nature mentioned is waived unless the trial court's attention is drawn to it before the charge is read to the jury. See collation of authorities in Vernon's Tex. P. C., 1925, Vol. 2, p. 328, note 58; also Medford v. State, 86 Tex.Crim. Rep.; Joiner v. State,89 Tex. Crim. 408; Ardry v. State, 90 Tex.Crim. Rep.; Howard v. State, 90 Tex.Crim. Rep., and numerous other cases collated in the reference made above.
The fault of which complaint is made, that is, the absence of proof of perjury by two credible witnesses or one credible witness strongly corroborated by other evidence as to the falsity of the statement of the accused under oath would be available on *Page 213 the complaint of the insufficiency of the evidence. However, in the present case, the corroborating evidence embraced in the appellant's confession is sufficient to comply with the statute. See Butler v. State, 36 Tex.Crim. Rep., and other cases collated in Vernon's Tex. C. C. P., 1925, p. 803, note 4.
Appellant insists that in the treatment of bill of exceptions No. 10 in the original opinion, this court was in error. The false testimony upon which the indictment is based is that on the trial of a suit for divorce in the District Court of Tarrant County in which the appellant was plaintiff and Grace Musick was defendant, he falsely testified as follows:
"I have resided in Tarrant County for three years just before this suit. I have not seen my wife for several years, and do not know where she is. I tried to find out, but no one seems to know. She was very cruel to me, and often called me vicious names. One night when I came home from work I saw my wife get into an automobile with some other men and drive away."
In the written confession which is found in the statement of facts, appellant said:
"I left my wife in Wichita Falls on the night of March 3, 1923, who was at that time living at 304 Elm street, where we had been living for something over a year. * * * She has a father and three brothers living in Wichita Falls, Texas."
In his confession he makes it clear that a few days after leaving Wichita Falls he came to Fort Worth and was employed in a dry goods store; that he became enamored with a woman who worked in the store; that on the 14th day of April he sought the advice of an attorney about a divorce from his wife, and on the 27th of April he filed his petition for a divorce. He also stated in the confession that he had last seen his wife in Wichita Falls on March 3, 1923, and had had frequent letters from her since that time and up to the time of the divorce, at which time he gave the testimony upon which the prosecution is founded.
L. F. Miller testified that he had resided in Wichita Falls for fifteen years prior to December, 1923, when he moved to Vernon, his present residence; that Grace E. Musick was his sister; that she had lived in Wichita Falls during the years 1922 and 1923; that he boarded with the family and had seen the appellant there during the spring of 1923 at his home where he and his wife lived.
The fact that the appellant's wife resided in Wichita Falls was not controverted on the trial further than that the appellant testified that at the time his divorce was obtained he left Wichita Falls and that at that time he did not know the whereabouts of *Page 214 his wife, Grace Musick. The evidence shows that after she left Wichita Falls, she went to Bowie, which was in Montague County, Texas. There was much other evidence in the appellant's testimony showing that the place of residence of his wife was in Wichita Falls, and that he was in communication with her; that he also knew the place of residence of her relatives, including her brother in Wichita Falls. He stated that he had written her some letters which she had not answered. As the record appears, we think that no harmful error was committed in the matter of which complaint is made in bill No. 10.
The other points raised in the motion for rehearing have received attention on the original submission.
The motion is overruled.
Overruled.