Plummer v. State , 35 Tex. Crim. 202 ( 1895 )

Appellant was convicted of perjury, and given five years in the penitentiary. It appears from the record that the grand jury of Travis County had under investigation the matter or the fact as to whether an abortion had been committed or produced upon the body of the appellant, Lizzie Plummer; that she was a witness before the grand jury, and stated under oath that she was not pregnant on a certain day, and had not been pregnant for six months prior thereto. Upon this statement or testimony, perjury was assigned. We have carefully examined the indictment, and hold it sufficient. It appears from the record that Geneva Starks, upon the trial, swore that appellant had confessed to her that she had given birth to a child within the time covered by the indictment. She also testified that she had seen the baby. No other witness testified to this confession or to having seen the baby. Counsel for appellant requested the court to instruct the jury, if they believed from the evidence that Geneva Starks was not a credible witness, then to acquit the appellant; also requested the court to instruct the jury that, if they did not believe the testimony of Geneva Starks to acquit appellant. These requested charges are based upon the proposition that perjury cannot 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. 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 cannot 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 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. The court, therefore, did not err in refusing the requested instructions. The charge of the court was full and a correct application of the law to the facts of the case. If the testimony of the witnesses for the State be true, the guilt of appellant is most clearly established. If the witnesses for appellant are reliable, the appellant was not guilty. We have rarely had before us a record bristling with a greater amount of perjury. The credibility of the witnesses and the weight to be given their testimony were submitted to the jury. The jury seem to have believed the State's witnesses. We cannot revise, under the circumstances of this case' the action of the jury in coming to the conclusion that appellant was guilty. The judgment is affirmed.

Affirmed.