Jones v. State , 76 Tex. Crim. 398 ( 1915 )

In his motion for rehearing appellant urges but two grounds:

One, "because the proof in this case absolutely fails to show the materiality of the matter assigned as perjury."

Two, because the court erred in holding there was no error in the trial court refusing to sustain his motion to strike out a certain part of S.H. Hancock's testimony.

1. In the submission of this case appellant's attorneys in their oral argument, and also in their brief herein, strenuously insisted that the purported false testimony of appellant before the grand jury was not material. We undertook to show in the original opinion, and we think we did, that the appellant's alleged false testimony was material, specifically so alleged in the indictment, and the allegations, in addition, showed that it was. Appellant again vigorously contends that the proof does not show it was material, although it was alleged to be. In other words, as he expresses it, that the proof "absolutely fails to show the materiality." We think he is clearly mistaken in his contention for the proof does show affirmatively the materiality of his false testimony. Appellant is right in his contention that it must not only be alleged to be material, but must also beproven to be material.

In every case where a party is charged by indictment with unlawfully engaging in the business or occupation of selling intoxicating liquors in prohibition territory one of the most material items of proof always is to show that about the time he is charged with this offense he then either received, or had in his possession, intoxicating liquors. Of course, the more frequent the receipt and the greater quantity shown to be in his possession the more strongly it might tend to prove that feature of the offense, yet, unquestionably it would be material to show that he had any in his possession however small the quantity might be. As said by Judge Davidson for this court in Oliver v. State, 68 Tex.Crim. Rep.: "He may keep only a small amount or may order it without keeping it on hand and sell to parties, and yet engage in the business."

As shown in the original opinion, the indictment alleged that the grand jury were investigating whether or not Lee Shoulders was engaged in or pursued the occupation or business of selling intoxicating liquors in violation of the prohibition law and appellant was before it as a witness and deliberately, wilfully and corruptly did testify that Lee Shoulders did not have in his possession and did not deliver to him intoxicating liquors on or about September 20, 1913, and that his testimony in this respect was knowingly and wilfully false. Mr. Lipscomb, the district attorney, after showing that he was present as such before the grand jury when appellant was before it, testified:

"At that time the grand jury had under investigation the question of whether or not Lee Shoulders was unlawfully engaged in and pursuing the business and occupation of selling intoxicating liquors in violation of law in Lamar County, Texas, after a local option election had theretofore been held in Lamar County prohibiting the sale of intoxicating liquors in Lamar County, and after the result of that election had been declared and published and after the local option law was in effect in this county, and as to whether or not he had made more, at least, than two sales of intoxicating liquors, and had made two sales of intoxicating liquors to Dollie Carter about the 20th of September, 1913. Mr. S.H. Hancock was foreman of the grand jury and administered the oath to the witness Houston Jones when he appeared before the grand jury to testify, and Houston Jones testified in substance before the grand jury, in answer to the questions, . . . that about the 20th of September, 1913, in Lamar County, Texas, that Lee Shoulders did not have in his possession any intoxicating liquors in Lamar County, and also further testified that Lee Shoulders didn't, about the 20th day of September, 1913, deliver any intoxicating liquors to this defendant, Houston Jones."

Mr. Lipscomb was not only not disputed in any particular, but Mr. Hancock, foreman of the grand jury, and Mr. Burnett, another of the grand jurors, fully corroborated him.

Mr. Ed Bell, after showing that he and John Collins were in a position to see into the back room of Lee Shoulders' barber shop and did see therein on September 20, 1913, as shown in the original opinion, testified: "On that day I saw the defendant, Hous. Jones, and Lee Shoulders. I saw Hous. Jones come through the barber shop, came back in the back end, came through the partition wall that run east and west and came back in the back end and called Lee Shoulders, and Lee Shoulders came back there and he told him he wanted a pint of whisky, and Lee went to a box and got out the pint of whisky, right by this partition door and came back there and gave it to Hous. Jones and he put it in his pocket." It is unnecessary to further detail his evidence wherein he showed that he and Collins at once got down from their hiding place, went to appellant and took from his pocket the said bottle of liquor and identified it. Collins testified substantially the same thing. We can not see how else it could be shown to be material, or what was lacking to show its materiality. Ernest Cox v. State, not yet reported.

So that we think there can be no sort of doubt that the State in this case proved that the said alleged false testimony by appellant was material. In other words, not only the indictment alleged the testimony of appellant was material but the State without doubt proved it was material.

2. Mr. Hancock, the foreman of the grand jury, testified: "At the time Houston Jones was before the grand jury they was investigating the case of Lee Shoulders down on Bonham Street, selling intoxicating liquors in Lamar County. I don't know who all the sales were made to, there was so many of them. There was an investigation made with reference to sales made to Dollie Carter by Lee Shoulders."

This testimony was given without any objection at the time by appellant as to the question he now urges in the court's refusal to sustain his motion to strike out certain testimony. After the evidence was all in appellant made a motion to strike out the following testimony by said Hancock, towit: "That while acting as foreman of the grand jury he had heard a witness say that Lee Shoulders had sold intoxicating liquors and that he could not remember the number of sales testified to by said witness before said grand jury." As a matter of fact, Mr. Hancock gave no such testimony as is claimed in said motion. The court, in approving the bill to overruling the motion to strike out, as stated, merely in effect approved the bill certifying that he overruled the motion. He did not certify thereby that Hancock had testified any such thing. Even if Hancock had so testified, it would not present reversible error, because appellant was not on trial for making a sale or buying liquor. If Shoulders had been on trial and the court had permitted such testimony against Shoulders, a different question would be presented. So that in no event does the bill present reversible error.

The motion is therefore overruled.

Overruled.