Harden v. State , 85 Tex. Crim. 220 ( 1919 )

In this case appellant was tried in the District Court of Hood County for the offense of perjury, and from a judgment of conviction brings the case before us on appeal.

The first complaint of the appellant is as to the sufficiency of the indictment, of which he complained in a motion to quash, motion in arrest of judgment, request for peremptory instructions, an special charge No. 7, all substantially presenting the same contention. The charging part of the indictment in the case reads as follows:

"Whereupon it then and there became and was a material inquiry before said grand jury and necessary for the due administration of the criminal law of said State and for the ends of public justice whether in said county and State on or about the 13th day of February, A.D. 1916, the said Gat Hardin, a man, and Minnie Bradshaw, a woman, not his wife, did then and there live together and special charge No. 1, all substantially presenting the same con-there lawfully married to another person, then living, and it further became and was a material inquiry before said grand jury whether in said county and state on or about the day and date last above written the said Gat Hardin, a man, and Minnie Bradshaw, a woman, not his wife, did have habitual carnal intercourse with each other without living together, he being then and there lawfully married to another person then living, and it further became and was a material inquiry before said grand jury, and necessary for the due administration of the criminal law in said State and for the ends of public justice whether said Gat Hardin, after placing one Minnie Bradshaw in a certain house and place conducted by G.C. Morris and his wife, Mrs. G.C. Morris, in the city of Fort Worth, in Tarrant County, Texas, the said place then and there being a rescue home for fallen women, did represent and state to said G.C. Morris and Mrs. G.C. Morris that he, the said Gat Hardin, was S.L. Johnson, and that said woman so placed by said Gat Hardin in said rescue home was named Mamie Johnson and whether the said Gat Hardin did then and there in said City of Fort Worth, Tarrant County, Texas, after placing said Minnie Bradshaw under the name of Mamie Johnson in said rescue home did on or about the 18th day of August, 1916, take said Minnie Bradshaw from said rescue home and return with her to said rescue home the following day thereafter and whether the said Gat Hardin did on or about the 18th day of September, A.D. 1916, take said Minnie Bradshaw from said rescue home in said Fort Worth and return with her to said rescue home the following day thereafter," etc.

The indictment further proceeds to set forth that Gat Hardin swore that he did not at any time or place within two years have sexual intercourse with Minnie Bradshaw, and that he did not tell Mr. or Mrs. Morris that his name was S.L. Johnson, nor that Minnie Bradshaw's name was Mamie Johnson, nor that she was his sister, and that he did not remember taking her away from the rescue home in Fort Worth, conducted by the Morrises and keeping her away all night on two occasions, but that he took her to picture shows from their house, always bringing her back the same night. The indictment further charges that all these statements were material and were false, and then sets out the traverse as to each of these matters.

Appellant's motion to quash is as follows: I. "Because, said indictment fails to charge all of the essential elements which are necessary to constitute the crime of perjury in that the said indictment, among other things, attempts to set out the essential elements which, in law, constitute the crime of adultery but, in the charging part thereof it fails to set out and allege some of the elements which, in law, constitutes said offense. II. "Because the said indictment is duplicitous, indefinite and uncertain in that it is so drawn that it does not set out and allege many of the essential elements which are necessary to constitute the crime of perjury. III. "Because, many of the allegations in said indictment wherein it is sought to allege the essential elements of perjury, allege facts and circumstances that are absolutely immaterial and the testimony thereon, if admitted in evidence before a jury, could serve no purpose except to prejudice the minds of the jury against the defendant and would not and could not be of any probative force in establishing the offense of the perjury sought to be established in this case on the part of the State. IV. "Because, said indictment is defective, duplicitous and uncertain in that, it alleges and sets out facts and circumstances that are charged to have taken place in a county other than that over which this court has jurisdiction. V. "Because, said indictment contains allegations and charges of acts and conduct alleged against the defendant that took place in a county beyond the jurisdiction of this court and acts and conduct which, if they did constitute an offense under the laws of this state, another and different court would have jurisdiction over the same and the said alleged act and conduct do not constitute any offense over which this court or any other court of Hood County, would have jurisdiction and the said allegations and the proof thereunder, in case the same should be admitted in evidence before a jury on the trial of this case, could and would serve no other purpose except to prejudice the minds of the jury against the defendant, in an undue manner and in a manner not warranted by law inasmuch as the defendant is entitled to a fair and impartial trial under the Constitution and laws of this State, upon legitimate testimony and such testimony only as is properly admissible under an indictment for perjury. V. "And especially does he move the court to strike out and hold for naught the allegations and statements in said indictment wherein it alleges certain conversations between the defendant and the prosecuting witnesses, Morris and wife, and wherein it alleges certain acts and conduct on the part of the defendant in Tarrant County, Texas, because said transactions would and are immaterial under the indictment in this case, could not be the basis of perjury, and immaterial, and, if such proof should be admitted on the trial of this case, it could serve no purpose except to prejudice the minds of the jury against the defendant.

Appellant presents concretely the substance of his motion to quash, and his other objections to the indictment, in the form of a proposition, which is as follows:

"Before a party can be legally convicted of the offense of perjury committed before a grand jury, the indictment must not only allege the materiality of the defendant's false statements made before such grand jury, but must go further and allege that the defendant, or some other person, was in fact guilty of some crime against the laws of this State about which he falsely testified and such indictment must set out and allege the constituent elements of such crime," and a statement of the ground of his contention, which is as follows:

"Our contention is, that in order for this indictment to be good, it must have been alleged therein that the defendant not only made the false statements alleged therein, but it must have been alleged that he was guilty of adultery with Minnie Bradshaw in one of the statutory modes, and that the constituent elements of said offense should have been alleged."

It will be noted that the motion to quash points out no specific defect in the indictment, and we will accept the proposition and statement of his contention above set out as presenting appellant's real contention in all of his objections presented as above stated, and based on the insufficiency of the indictment. He contends that the indictment must not only allege the materiality of the false statements made before the grand jury, but that the indictment must go further and allege that the defendant, or some other person, was in fact guilty of some crime against the laws of this State in the matter about which he falsely testified.

We cannot agree to this contention. If such were the law, perjury might be committed in all causes where grand juries did not find indictments, and in all cases before courts where the accused was acquitted, and the State in such event would be helpless to prosecute, because it could not allege in the indictment for perjury that the accused, or any other person, was guilty in the matter about which issue was joined at the time of the alleged perjury. The law intends to punish the makers of false statements regarding the material facts in proper inquiries, no matter what becomes of the investigation or litigation, or whether it be developed that the matter charged is wholly baseless or absolutely true. We know of no authority, and have been cited to none, holding as appellant here contends. We have carefully examined those authorities cited in support of this proposition in appellant's brief, but according to our understanding none of them justify any such contention.

The Gallegos case, 95 S.W. Rep., 123, holds the indictment bad, because it appears upon the face of the same that the matters the grand jury were investigating would, if true, not amount to violation of the law.

The Weaver case, 34 Tex.Crim. Rep., also cited, holds the indictment bad because the materiality of the alleged false statement is not shown. However, this court said: "Investigations of grand juries should only be directed to violations of law. Statements of persons testifying before such bodies, unless material in some respect to such investigation, cannot be the basis of perjury. . . . The materiality of such evidence when given must be measured by the subject matter under investigation."

The Scott v. State, 75 Tex.Crim. Rep., 171 S.W. Rep., 234, case holds the indictment bad because its contents show that the matter under investigation did not amount to a violation of the law; the matter investigated being alleged to be whether the party played at a game with dice. Playing games with dice is not an offense against the laws of this State; betting on such games being the act made penal.

The Buller case, 28 S.W. Rep., 465, merely holds bad an indictment which fails to directly allege the materiality of the alleged false statement, or to plead facts from which such materiality would appear.

The McMurtry case, 43 S.W. Rep., 1010, cited, hase been expressly overruled.

The Miller case, 65 S.W. Rep., 908, cited, is the law, but in our opinion inapplicable. This court there said: "If the indictment had alleged that the testimony given before the grand jury was material to some issue, this general allegation might have been sufficient. In the absence of this character of allegation, then enough of the facts and circumstances of the matter inquired about by the grand jury should have been stated to manifest its materiality."

The Rosebud case, 98 S.W. Rep., 858, is wholly in line with the others just examined, in deciding only that there is no sufficient allegation or showing of the materiality of the alleged false statement to the matter inquired about.

The McDonough case, 84 S.W. Rep., 594, also cited, holds the indictment in that case good, and there is nothing in the case to support the proposition of appellant.

We have carefully examined these authorities cited and others to ascertain if there be any authority for holding that the indictment should allege, that in the matter under investigation it must be charged that the accused is guilty, but have found no authority so holding.

Appellant further contends that the indictment is bad, and that the evidence showing intimacy on the part of appellant with Minnie Bradshaw should not be admitted, because in one paragraph of said indictment, in alleging that were the material matters of inquiry before the grand jury when he appeared and testified, it was stated that it was material whether Gat Harden and MinnieBardshaw, a woman, did live together and have carnal intercourse, etc.; appellant's contention being that Bardshaw and Bradshaw are not idem sonans. We might content ourselves by saying that the paragraph containing the misnomer and calling the woman Bardshaw can be eliminated from the indictment as surplusage without marring or affecting its sufficiency. The next paragraph of the indictment charges that, it further became and was a material inquiry before said grand jury whether Gat Harden, a man, and Minnie Bradshaw, a woman, not his wife, did, in Hood county, Texas, have habitual carnal intercourse with each other without living together, he, the said Gat Harden, having a lawful wife then living; which allegation fully sets out that the material matter under search was the offense of adultery committed by the appellant and Minnie Bradshaw.

However, we wish to dispose of this objection to the indictment on broader grounds. Our statutes only require such certainty in indictments as will enable the accused to plead the judgment rendered thereon in bar of any subsequent proceeding. See Art. 453, C.C.P. Our decisions hold, and correctly we think, that the indictment should set out the particular offense charged with such certainty as that a presumptively innocent man seeking to know what he must meet may ascertain fully therefrom the matters charged against him. Earl v. State, 33 Tex.Crim. Rep.; Brown v. State, 26 Texas Crim. App., 540. A name may be more or less material in an indictment, according to the facts therein set forth, and when used to designate ownership as in theft, or the assaulted party, in those pleadings where the name is material and occurs but once, or where same represents a substantial element of the offense charged, as is the case in each of the authorities cited by appellant in support of this contention, a misnomer might be fatal, unless the same was idemsonans, but in our opinion where a name is used many times in a pleading, and appears once spelled differently from the way it appears in the remainder of the pleading, then the rule of law applicable to errors and mistakes in grammar and spelling would apply, and the misnomer must appear to be such matter as might fairly mislead or confuse the person charged in the indictment. In the instant case the name of the woman with whom the adultery is supposed to have been committed appears more than twenty times as Minnis Bradshaw, and only once as Minnie Bardshaw, this being a manifest clerical error causel by transporting two of the letters in said name. But as it seems to us too clear for dispute that in this state of case the accused could not have been misled, or in any way prejudiced by such clerical error, we see no error in the action of the lower court in overruling the objection both as to the indictment and to the admission of the evidence of the appellant's intimacy with Minnie Bradshaw. Hudson v. State, 10 Texas Crim. App., 215; Hale v. State, 7 Texas Crim. App., 44; Ervin v. State, 7 Texas Crim. App., 109; Keller v. State, 25 Texas Crim App., 325; Bailey v. State, 63 Tex.Crim. Rep..

Mr. Justice Ramsey, in Lewis v. State, 55 Texas. Crim. Rep., 167, uses the following language, which meets our approval:

"An inspection of the indictment in which the name of the assaulted party is used, would, if said name stood alone, look like it was spelled `Coots;' but an examination of the entire indictment shows that the `a' in the name of the assaulted party is identical with all the other `a's' — fourteen in number — in the indictment. There was, as stated, no question as to the name in fact of the alleged injured party; there was no possibility of any doubt as to the identity of the person charged to have been assaulted. Appellant could not have been surprised, misled, or in doubt as to the name of the person and the identity of the person upon whom the alleged assault was made. There is no defense based upon the `weightier matters of the law,' and practically none in the testimony. There is no complaint of the charge of the court. The defense is wholly technical, and, as we believe, hypercritical. It is elementary that in indictments and proceedings in law and the most solemn and important contracts, that they are not to be avoided, either for bad spelling or bad grammar. Shall we hold that, because the district attorney does not write with the absoulte precision of copper-plate, or steel-engraving, dot all his `i's' or cross all his `t's,' that the convictions of the courts shall be set aside and the labor of the law rendered unavailing? We do not think this sort of doctrine ought to have any standing in a court of justice."

It is also objected to the indictment and proof that matters are set out and testified to which are alleged to have occurred in Fort Worth, in a county other than the one in which the grand jury was sitting before which the alleged perjury was committed. The material inquiry relative to which the alleged false statements were made was as to the adultery of Gat Harden and the woman in Hood County. Bearing on this question, it was alleged to be material that Harden carried her to Fort Worth, placed her in a rescue home and told the proprietor that his name was Johnson, and that her name was Johnson, and that she was his sister, and also that he visited her there, and took her from this place, keeping her away twice all night.

That these matters occurred in a county other than Hood County would not in any way prevent them from being material as showing what he had done in said county. A man may be charged with theft in Hood County, and it would hardly be seriously contended that his possession of the alleged stolen property in Tarrant County, or his statements there about his acquisition of the same, or any other fact occurring in Tarrant County shedding light on the theft in Hood County, would not be receivable as evidence on the trial in Hood County. We find no error in the action of the court as indicated.

We have carefully examined appellant's objections to the court's charge, but for the reasons hereinabove given we think the charge correct in submitting to the jury the matters occurring in Tarrant County as bearing upon the falsity of the statements made by him before the grand jury in Hood county.

Appellant complains that the court refused to give a special charge that the jury would not consider for any purpose the statement made by the appellant before the grand jury of Hood County unless the same was freely and voluntarily made. The authorities cited by appellant in support of this proposition are cases in which there was evidence presented on the trial of a denial by the party charged of the warning given, or of the voluntary character of the statement made, in which case the courts correctly hold the question of the voluntary character of such statement must be submitted to the jury, but comparing the cases, giving rise to the opinions cited, with the instant case, it seems to us to demonstrate that those authorities are not the law of this case. This appellant was not subpœnaed by the State to go before the grand jury, or asked in any way to appear there, but went freely and voluntarily of his own accord, and after making his appearance and offering himself as such witness, and before he testified, he was fully warned by the district attorney of the consequences of his giving testimony, and told that it would be used against him upon any trial of himself that might follow such investigation. He then testified denying the guilt of himself and the woman, and denying the matters alleged to have occurred in Tarrant County, and when these matters were written out and presented to him he seems to have signed them without any demurrer whatever. The court fully cared for his interest in the main charge, and told the jury that if such statement was made under a mistake, or agitation or excitement, or unless the district attorney had warned the appellant that he did not have to make any statement unless he desired to do so, and that any statement he made might be used against him in any trial which he might have thereafter concerning the matters about which the statement was made, and unless thereafter such statements were made that they could not consider said statements at all. We have carefully considered each objection raised by appellant, and there appear none that would justify us in reversing this case.

An examination of the record shows that appellant was a man living at home with his wife, and that he took a young lady about seventeen years of age into his home and there debauched her; that when she became pregnant he took her to a rescue home in Fort Worth, paid her expenses, and visited her there both going under an assumed name; that after the birth of her child he carried her back to his house where his wife was, who had been in ignorance of the matters mentioned. The grand jury began an investigation of the offense of adultery between the parties, and while they were deliberating the appellant appeared before them and gave his version of the matter. The indictment for perjury followed and his conviction. No substantial objection is made here to the fairness of the trial or justness of the conviction, or the amount of punishment affixed.

The judgment of the trial court is affirmed.

Affirmed.

ON REHEARING. April 23, 1919.