W. D. Hill v. The State, 22 Tex. Ct. App. 579

Hurt, Judge. This is an appeal from a conviction for perjury. W. H. Hunt, jr., was indicted and tried for illegally marking and branding a certain calf alleged to be the property of the appellant. Upon this trial appellant was a witness, and his testimony then given is assigned as perjury. Hunt w&s tried on April 30, 1884, and it appears from a bill of exceptions that Hunt sued Hill for the calf before a justice of the peace, in which suit Hill recovered a judgment for costs. This suit was instituted October 33, 1883. The indictment was presented against Hunt October 11, 1883.

Appellant offered in evidence the record of trial and judgment in the case of Hunt v. Hill, relating to the title to the calf. The State objected upon the ground of irrelevancy, and the court sustained the objection, and appellant excepted. In this there was no error.

The parties to the first suit were not the same as in this prosecution; (3 Greenl., sec. 522.) The suit between Hunt and Hill was not a case in rem, nor was the judgment in that case of a public nature. (Id., sec. 526.) Hor was this judgment sought to be used by way of inducement, or to establish a collateral fact, as is permitted in such instances as are treated in

section 537 of Greenleaf on Evidence. The State, over the appellant’s objections, introduced in evidence conversations between appellant and J. E. Graves, H. 0. Pedigo, O. H. Porter and one Hilliard, occurring at different times, in regard to trades of yearlings and other stock with W. H. Hunt, jr. Appellant objected because these conversations were had anterior to October, 1883, and because the matters established by these conversations were immaterial and irrelevant.

By referring to the testimony of these witnesses it is found that the evidence elicited from them is quite pertinent, and very conclusive in its character; hence there was no error in its admission upon the grounds of irrelevancy. Hor can we see how the fact that these conversations occurred prior to October, 1883, could affect the question of competency.

The charge of the court is complained of because it does not define the word ££ willful.” Ho objection was .taken to the charge when given, nor were any special instructions requested, the correctness of the charge being called in question for the first time in the motion for a new trial. We are cited to several cases holding that it is necessary to define “ willful.” These decisions are correct when considered with reference to the offenses discussed, and the peculiar facts of the cases cited.

When, however, considered with reference to this offense, and when the charge is taken as a whole, we do not think the omission contributed in the least to injure the appellant. Perjury is a false statement deliberately and willfully made. A false statement made through inadvertence, or under agitation, or by mistake, is not perjury. The court in its charge gave to the jury the above definition and restrictions in a very clear manner. We can not see how a party can deliberately, without agitation, coolly, without mistake or inadvertence,, make a statement without such statement be “willfully” made.

The omission, if error, not being objected to at the time, we must look to the entire record to ascertain if it was prejudicial to defendant, and, thus viewing the record, we perceive no injury. Opinion delivered December 15, 1886.

It is urged that “ the court erred in each and all of its charges to the jury except the fourth, seventh and eighth, because they are not law, and, if law, they are not warranted by the facts in evidence, in this, first, the charge of the court alleges that defendant is charged with perjury in the indictment, when in truth and in fact said indictment will not sustain a conviction for the offense of perjury.” If the indictment be defective why not move to quash or in arrest of judgment? Why question the charge because it simply states that “defendant is charged with perjury in the indictment?” “ Second.

In the second charge the allegation of the indictment was not correctly stated.” ' The false statements made by the allegations of the indictment are very clearly stated and each of the false statements assigned for perjury is very distinctly presented to the jury with such instructions as to properly form an issue upon each statement. • In the fifth charge the court instructed the jury that they must find from the evidence, beyond a reasonable doubt, that the statements were false.

Appellant does not object to this, but does object because the jury were not instructed that they must believe that defendant knew their falsity beyond a reasonable doubt. By referring to the charge it will be seen that the reasonable doubt is applied as well to the knowledge of defendant as to the truth of the statements. We have critically examined the charge with and without reference to the objections urged to it, but fail to find such error as demands a reversal of the'judgment for error therein. Counsel firge the insufficiency of the evidence to support the verdict.

We have read the statement of facts several times, and must say we believe the verdict fully sustained by the evidence. The judgment is affirmed. Affirmed.