Smith v. State

ON state’s motion for rehearing.

GRAVES, Presiding Judge.

It is contended herein by the state that the opinion on motion for rehearing which reverses this cause is based mainly upon the authority of Brown v. State, 40 Tex. Cr. R. 48, 48 S.W. 169. In that case it is again affirmed that “the proper course of pleading is to negative specially each part of the defendant’s testimony which is alleged to be false; and, if any material assignment be adequately proved, it is enough to support the indictment, if falsity be satisfactorily shown,” quoting from 2 Wharton’s Crim. Law, sec. 1316. The same doctrine is again laid down therein generally as follows: More than one statement can be alleged in an indictment for perjury and the proof of either of said statements will constitute a good indictment.

In Galindo v. State, 129 Tex. Cr. R. 532, 89 S.W. (2) 990, an affidavit for a continuance was made by the accused in which he set forth the fact that three certain witnesses had had subpoenas issued for them but he was unable to find any one of the three. However, the testimony showed that he knew the whereabouts of these three witnesses and their attendance could have been compelled at the trial of his case. The portion of his affidavit upon which he was convicted was that he had stated therein that this motion “was not made for delay.” The court held therein that it being alleged that such motion was not made for delay, the fact of his knowledge of the whereabouts of the witnesses could be utilized for the purpose of upholding *493the conviction. To the same effect is the case of Adellberger v. State, 39 S. W. 103, wherein in the same count of the indictment two false statements were alleged to have been made by the accused. The court held that it was necessary that only one of such statements be shown to have been false. To the same effect is Urben v. State, 77 Tex. Cr. R. 26, 178 S.W. 514. In that case several assignments were made relative to the false statement. The court held that proof of only one of the same was necessary to a conviction.

Referring again to the Brown case, supra, the charge of the false testimony therein was that the witness testified before the grand jury that he saw a certain party at a place about a mile and a half from the Guadalupe County line driving 16 head of hogs which were the property of Berl Randell, thus establishing that if such facts were true said party was stealing these 16 hogs. The testimony produced on the trial was that the witness had testified that he saw this accused person in the hog theft case driving 16 head of hogs, but nowhere therein does he say that the hogs were the property of anyone else, and especially he did not say that they were the property of Berl Randell. The trial court then charged the jury that it was not a material matter as to who was the owner of the hogs that this accused person was driving and therefore refused to instruct the jury that it was necessary that these hogs be proven to have been the property of Berl Randell. This case was reversed because it was never shown that Brown testified that these were the hogs belonging to Berl Randell that were being driven away by the accused person. The whole transaction itself is centered on- whose hogs were being- driven away by the accused person. If they were his own hogs, he had a right to drive them, but if they were not his own, then it was necessary to show whose hogs they were before any person could have been proven to be guilty of the theft of these hogs. So, under the circumstances, the whole transaction should have been taken together, and it would be material to show whose hogs this man is supposed to have stolen. The court said that this was an immaterial matter. We did not agree to such at the time this case was decided and we do not now agree with it. We do not think the Brown case is controlling in the present instance because it is claimed to have been shown by the testimony that this man (Smith) testified that he was not on the land of Mr. Kramer at the time set forth in the indictment. Therefore, he could not have had a conversation thereon with Mr. Kramer. It was material as to whether or not he did in fact have a con*494versation with Mr. Kramer as testified to by three witnesses. We also think that under the facts herein shown it could be fairly deduced that the appellant’s testimony taken as a whole would show that he denied not only being on the land of Mr. Krame'r but also denied having had any conversation thereon with him.

We are cited to the case of Ziegler v. State, 121 Tex. Cr. R. 91, 50 S.W. (2d) 317. We think this case is not in point, if for no other reason, because of the fact that it relates to a false affidavit which, under the statute, is denominated false swearing rather than perjury. Such case draws a close distinction between the two and quotes from Wilson v. State, 49 Tex. Cr. R. 496, 93 S.W. 547, as follows:

“We understand any false oath as to something past or present, affords the basis of false swearing. It is not necessary that it be on a material question, as in perjury; it is simply requisite that it be a false affidavit to a fact past or present.”

We quote from Robertson v. State, 68 Tex. Cr. R. 243, 150 S.W. 893, as follows:

“Appellant contends that, as the indictment charged conjunctively several different false statements alleged to have been made by appellant, the court could not single out any one of them, but was compelled to charge on all of them taken together and not disconnected. In this case the indictment is clearly so drawn as to present separate and distinct allegations of material false testimony, and to distinctly traverse them, in which case the reverse of appellant’s contention is true. Sisk v. State, 28 Tex. App. 436, 13 S.W. 647; Washington v. State, 23 Tex. App. 336, 5 S.W. 119; Jackson v. State, 15 Tex. App. 579; Donohoe v. State, 14 Tex. App. 638; Terry v. State, 62 Tex. Cr. R. 73, 136 S.W. 485.”

In the case of Campbell v. State, 43 Tex. Cr. R. 602, 68 S.W. 513, the indictment alleged that in an affidavit the appellant had falsely sworn that he was the lawful owner of certain cattle under certain brands. It was held that said indictment charged ownership of two different herds. The indictment is not' bad as the pleader could rely on proof of either. It was not necessary to offer proof of both such herds.

In Moore v. State, 32 Tex. Cr. R. 405, 24 S.W. 95, it was said:

*495“The indictment contains but one count, in which perjury is assigned upon two statements made before the grand jury at the same time, in regard to the same subject-matter. It is so well settled in this state that proof of the falsity of either statement, if the statements were both material and properly assigned, as was the case in this prosecution, will support a general verdict, that we deem it unnecessary to discuss the question.”

In Logan v. State, 96 Tex. Cr. R. 601, 258 S.W. 880, we held:

“It is the rule that when more than one assignment is laid in a perjury charge, those not material or not proven will be rejected and still a conviction upheld if material assignments appear and are supported by proof.”

In 32 Tex. Jur. p. 807, sec. 25, it is said:

“Where there are several assignments of perjury or false swearing, proof of any material assignment is sufficient to support a conviction, although immaterial assignments may have been submitted to the jury.”

Under these circumstances and this line of decisions, we are of the opinion that the opinion on appellant’s motion for rehearing should be withdrawn, and the state’s motion for rehearing should be granted and this cause affirmed, as set forth in the original opinion herein, and it is so ordered.