Foster v. State , 32 Tex. Crim. 39 ( 1893 )

1. This appeal is prosecuted from a conviction of perjury alleged to have been committed before the grand jury during its investigation of a difficulty involving an assault with intent to murder by one Frank Lowe upon one Canfield and others.

On the day subsequent to the shooting, and during his investigation of the difficulty, the justice of the peace caused the defendant to be brought before him, and examined her as a witness in relation to said difficulty. This officer testified during the trial of the defendant in this case, that her bearing, conduct, action, and language were very insolent while testifying before him, and that he had occasion to rebuke her for such conduct. It is insisted that this evidence was introduced for the purpose only of showing the willfulness and deliberation on the part of defendant when testifying before the grand jury, and was therefore extraneous matter, and should have been restricted to that particular phase of the case by the charge of the court. Deliberation and willfulness are not extraneous matters in perjury cases, but essential elements of the offense, and without which it can not be committed. Evidence which proves, or tends to prove, such issues goes to the very substance of the crime of perjury. It is only when the extraneous matter is admitted in evidence for a specific collateral purpose that the court is required to limit and restrict the testimony to such specific purpose. The rule invoked by defendant does not obtain when the admitted testimony proves, or tends to prove, the main facts.

2. The defendant's requested instruction, that "the jury must believe from the evidence that the grand jury were legally empanelled, charged, and sworn, before they could convict the defendant," was refused. This charge, it is stated, is based upon the failure of the prosecution to show by the minutes of the court that the grand jury were empanelled. That fact is sufficiently shown otherwise; and while it is proper to prove such fact by the minutes of the court, yet its omission will not constitute cause for acquittal, if it is shown otherwise without objection. The court did not err in refusing the requested instructions, under the facts of this case.

3. Defendant offered, but was not permitted, to prove by grand jurymen Menn and Law the want of materiality of the testimony of the defendant before the grand jury, upon which the perjury is assigned. This was not error. In prosecutions for perjury assigned upon evidence given by a witness in a case under judicial investigation, "the materiality of the testimony is a question of law, not of fact. But, like any other question of law, it may be so mingled with the facts, the court should submit it, with proper instructions upon the law, to the jury." 2 Bish. Crim. Law, 7 ed., sec. 1039a. It is for the judge, and not the jury, to pass upon the materiality of the false testimony, "and assigned as perjury." Washington's case, 23 Texas Cr. App., 336. The mere opinion of witnesses can not be adduced as evidence to prove the materiality of the alleged false evidence. They are no more competent to form correct conclusions in this respect than the jury trying the cause. Same authorities.

The testimony is sufficient to support the conviction. The falsity of the evidence is shown by two witnesses, Winfield and Canfield. The judgment is affirmed.

Affirmed.

Judges all present and concurring.