St. Clair v. State , 11 Tex. Ct. App. 297 ( 1881 )

Hurt, J.

The appellant was convicted of perjury, charged to have been committed before the grand jury of Lampasas county. The defendant moved the court below to quash the indictment, for the following reason: “Because the same charges no offense against the State of Texas.”

This exception does not point out the supposed defects in the indictment; but this is done in the very able brief of counsel for defendant. The grounds relied upon to sustain the motion are these:

“1st. Because it, the indictment, does not show by direct affirmative allegation that the District Court of Lampasas county was in session on the 19th day of November, A. D. 1879, the date of the alleged offense.

“2d. Because it does not show the organization of the grand jury before whom the perjury is charged to have taken place.

“3d. It does not show the appointment of H. S. Arnold as foreman of the grand jury.

“4th. It does not allege that the said grand jury was in session when the oath was administered by said Arnold; nor when the alleged statements were made. ”

The objections may be condensed into one, for they all rest upon the same foundation, which is, that the constitution, organization or lawful existence of the tribunal before which the oath was taken must be clearly and affirmatively set out in the indictment. In support of this proposition a great many opinions, both English and American, can be relied upon. The English authorities are mostly, if not entirely, anterior to 23 Geo. 2, Ch. 11, but in this country quite a number may be found subsequent to the passage of that act, which was in 1750. Is the statute of 23 Geo. 2 binding, as common law, upon the courts of this State? Upon this question Mr. Bishop observes: “ The former statute is of a date too recent to *be á part of our common law by force of the ordinary rules which govern such questions. But sometimes a statute so highly remedial, passed during the colonial period, was, especially when it might be deemed in some measure declaratory of the true rule, accepted by our courts as furnishing the rule for their future guidance.”

Again, lie further, we think, very justly remarks: “Not unfrequently statutes were passed to remove objections which had no real foundation in the law as correctly construed, but only in some corrupt general or even local practice.” This great writer and philosopher maintains that the rules contained in 23 Geo. 2 were, prior to this act, the true doctrine, and that this statute merely declares that to be law which was in fact (not practice) the law; and that the provisions of that statute, not by virtue of the' act, are binding upon the courts of this country as common law. This State has placed herself in line with others of these United States, and holds the doctrine enunciated by Mr. Bishop. This is no longer an open question in this State, for it has been discussed at great length, and we hope put to rest. Bishop Cr. P. vol. 2, secs. 901, 902, 903 and 904; 50 Mass. 219; 6 Texas Ct. App. 184; 7 Texas Ct. App. 375; 9 Texas Ct. App. 171. Notwithstanding the very able brief and argument of counsel for defendant, we are constrained to hold the indictment good.

The counsel for defendant urges a reversal because of a paragraph in the charge. There was no objection taken to the charge at the time, nor did the motion for a new trial point out or specify the grounds of objection. To allege in the motion that the court erred in the charge is too uncertain, too vague; in fact, it furnishes the court with no information as to the error, in order that the court may redress the injury if there be .any. If the court misdirects the jury, defendant should except, or point out the wrong in his motion for a new trial, thus giving the lower court the opportunity to correct the error, or redress the wrong by a new trial. And unless this course be pursued, we will not reverse the judgment for such errors, provided the error is not fundamental, or the injury not evident.

The evidence, we think, clearly supports the verdict. The action of the court in admitting the records of the court to prove that the District Court was in session, and that the grand jury was organized, was highly proper. There could have been but one objection to this evidence, and that was the want of an allegation in the indictment to support this proof; hence the decision of the first question settles this. We have very carefully examined this record, and the very able brief of counsel for defendant, but have found no such error as will warrant a reversal of the judgment. The judgment is affirmed.

Affirmed.