Roberts v. State , 83 Tex. Crim. 139 ( 1918 )

On a former day of the term there was an order entered of record postponing the trial of this case until a recognizance could be had properly in the trial court for the reasons stated in the opinion awarding the postponement. This matter has been properly attended to in the trial court, and a proper recognizance is now before the court, which attaches the jurisdiction of this court, and the case will be disposed of on the record.

Appellant was convicted of perjury, his punishment being assessed at two years confinement in the penitentiary.

The allegation upon which the perjury is based, in substance, is that appellant swore on a habeas corpus hearing in a homicide case in which Way is charged with killing Louis Moglia, Sr., that before Way fired the first shot in that difficulty that young Moglia had started towards the north end of the counter where there was located his pistol. Way shot and killed the elder Moglia, the father of the young man. The indictment alleged in ordinary terms that this was material, and was wilfully done, etc.

We deem it unnecessary to discuss the question of the irregularity of the special term of the court. This matter seems to have been in compliance with the decisions.

At the request of appellant the court ordered the indictment so changed as to omit the expression "alias High Pockets." Appellant was indicted as Ed Roberts, alias High Pockets. A pencil or pen was used in erasing the expression "alias High Pockets" in the indictment, but it did not fully obliterate it, and a question is raised upon this. Appellant had a right to have this done when he was called upon to answer to the reading of the indictment. He had a right to plead under whatever name he saw proper, and to have the indictment changed to conform to the name he gave. Upon another trial this matter should not arise, and the obliteration of it will be sufficient to erase it entirely. This might not amount to much in the case, but defendant had a right to have it done, and the matter is mentioned more specifically because in the charge of the court, in mentioning the case, he stated to the jury that the party was Ed Roberts, alias High Pockets. After it had been erased from the indictment this should not have occurred in the charge. This will not occur upon another trial.

In order to review some of the bills of exception a brief statement of the trouble between Way and Moglia, in which the elder Moglia lost his life, will be necessary, as the prosecution for perjury grew out of that transaction, or rather the testimony on writ of habeas corpus of Way for bail. Way had gone into a saloon owned by Moglia and had taken a drink. After so doing he sat in a chair and went to sleep. After waking he missed a piece of jewelry and called Moglia's attention to the fact, and demanded its return. This brought on a difficulty in which hard words ensued, and the elder Moglia became very much offended at his son being charged with theft. This charge by Way seemed to have been directed against young Moglia, and the father, who later became the deceased, interfered and expressed great indignation that his son should be charged with such theft. Two or three hours subsequent to this Way appeared in the saloon and the difficulty occurred in which the elder Moglia was killed. The contention of Way on the writ of habeas corpus, and the truthfulness of which had to be overcome in order to make appellant guilty of perjury, was that young Moglia started towards the north end of the counter to get his pistol and Way began shooting. Appellant swore upon the habeas corpus trial that young Moglia did start in that direction and that a pistol was kept at that point. On appellant's trial the State introduced evidence of the first trouble between Way and the Moglias with reference to the jewelry that was taken. The details of this trouble were introduced against appellant on his trial. Exception was reserved. We are of opinion the exception was well taken. Appellant was not present at the first transaction and was not charged with notice or knowledge of those matters. He claims to have been present at the second transaction, and testified to what he saw. Matters that occurred at the time of the homicide when appellant said he was present would be evidence because they were within his knowledge and observation.

Appellant was arrested almost immediately after the killing, or within a very short time, and carried by the police officer to their headquarters. While under arrest he was asked with reference to the shooting and denied any knowledge of it or his presence at the time and place. The details of these bills of exception, there being several of them, are not necessary to state. The court admitted the testimony upon the theory that he was not charged with the homicide and it was not a confession, and that this perjury was an independent offense, and, therefore, these statements could be used against him, although under arrest, without warning, or being in writing. Subsequently, on the habeas corpus trial appellant did state he was present and saw young Moglia start in the direction of his pistol. The denial was used as evidence of his guilt in this case. It was a criminating fact as thought by the State. We are of opinion that this testimony was not admissible, and the fact that it was not a confession with reference to the homicide or that he was not telling the truth about this matter in the homicide case, would not authorize the State to use that statement as an incriminating fact to convict for the perjury. See Branch's Crim. Law, sec. 208, also 218; Davis v. State, 19 Texas Crim. App., 201; Taylor v. State, 3 Texas Crim. App., 387; Murff v. State, 76 Tex. Crim. 5; O'Connell v. State, 10 Texas Crim. App., 567; Robinson v. State, 55 Tex.Crim. Rep.. There are several bills of exception with reference to this matter, and this denial seems to have been made, as shown by one or more of the bills, especially bill 13, because he had been arrested for the homicide or as having a guilty participancy in the homicide with Way. It is evident from these bills that appellant was arrested in connection with the homicide and sharply questioned by the officers, and these statements were denials of his presence at the time and place of the killing and participancy in the homicide of Moglia by Way. In this connection he further made a statement, though it was just subsequent to the other statement, to Hansen that he was present at the time and saw the transaction. The purport of this denial and statement to Hansen was a contradiction of the statement to the officers which it seems Hansen had heard made by appellant to the officers. Having introduced the statement of the officers, this statement of appellant should have gone to the jury. It is unnecessary to discuss this matter further. Upon another trial these statements will be excluded. It was not necessary that a complaint or indictment be filed to constitute basis of arrest. It is sufficient if he be under arrest even on suspicion. Detention, legal or illegal, would be sufficient to exclude such confession or statement.

There are several bills of exception which it is not necessary, we think, to notice in detail as all bear upon the same matter. Process had been issued for appellant to testify in the trial of Way. Failing to appear, application for a continuance was made by Way for his presence; also at one time appellant was brought under arrest or attachment by an officer in the Way case. These matters are set out in several bills of exception and at length, but the above is practically the substance of the contention. This testimony was not admissible. The court seems to have admitted this testimony upon the theory that appellant was a fugitive, and that if he did evade process of the court in the Way case, such flight could be used as evidence of his guilt in this case. None of this testimony was admissible in his trial for perjury. Appellant had testified in the habeas corpus trial as charged in the indictment upon which the perjury was predicated. Way was subsequently indicted and sought the attendance of the appellant as a witness in his behalf. If appellant had fled to avoid this indictment and trial, the question of flight might have been used, but not his evasion of process in the Way trial for murder. This is a condensed statement of these matters, and it was erroneous. None of these matters will be permitted to go before the jury upon another trial. None of the evidence with reference to appellant's evasion of the process of the court in the Way trial was legitimate evidence against him in this case as presented by this record.

There was a witness introduced by the State thought to be important. On the cross-examination of this witness appellant offered to prove that he was in the employ of the Zimmerman disorderly house, and that it was a well known disreputable assignation and bawdy house, and that this witness frequented and was employed in that place. We are of opinion the defendant could ask and obtain from the witness the business in which he was engaged or calling or occupation pursued.

Appellant excepted to the court's charge for several reasons and asked special instructions which were refused. The court did not define what is meant by the words "wilfully" and "deliberately" in connection with perjury. We are of opinion that the court should have given the special charge defining these words. We would not feel inclined to reverse for failure to do so usually, yet the statute uses those terms, and it is well enough and in fact we think the court should define them to the jury, especially when requested so to do.

The State introduced some of the proceedings in the habeas corpus trial of Way upon which this perjury is alleged to have been committed. This was admissible for reasons well known to the profession and understood in our jurisprudence, but appellant requested the court to limit the effect of this testimony, which was declined and refused. Wherever the result of the trial is adverse to the party on trial and the perjury is alleged as growing out of that trial, it is necessary under the decisions to limit its effect to the purpose for which it was introduced. There is another line of decisions which hold that where the result of that trial was favorable to the side on which the witness testified, and upon which the perjury is based, it would not be necessary to so charge because the verdict or judgment was favorable to the side for which he testified. The bill is a little indefinite, but these two lines of decisions are well recognized, and if there is a doubt about that matter upon another trial the court should limit this testimony to the purpose for which it was introduced.

There are a great many bills of exception in the record, and the questions are elaborately presented, but in disposing of the case we have grouped them rather than follow the bills of exception seriatim. We deem it unnecessary to go into a discussion of each bill. There are a series of them presenting the same question from different views, therefore we have confined ourselves to grouping the questions rather than following them seriatim.

For the reasons indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.