B. A. Higgenbotham v. The State, 24 Tex. Ct. App. 505

Willsox, Judge. This appeal is from a conviction for perjury alleged to have been committed by the defendant when testifying as a witness before an examining court in a cause wherein the State was plaintiff and one J. W. Bryant was defendant, said Bryant being charged with forgery. On the trial of this cause, the State read in evidence the complaint in writing and under oath, made by one Dykes, charging J. W.

Bryant with forgery, and upon which the prosecution against Bryant, in which prosecution the alleged perjury was committed, was founded; and also read in evidence the testimony of said Dykes given on the trial of said complaint and reduced to writing before the examining court.

Having admitted this extraneous evidence for the purpose of proving the alleged false statements made by the defendant in the judicial proceeding, and before the court alleged in the indictment, and to show the issue joined in said proceeding, it was the imperative duty of the court, in its charge to the jury, to instruct that such testimony could not be considered by the jury in determining the main issue—which was the willful and deliberate falsity of defendant’s statements—but could only be considered for the specific purposes above named. (Davidson v. The State, 22 Texas Ct. App., 372; Maines v.

The State, 23 Texas Ct. App., 568.) This duty the trial judge failed to perform, and the omission is error for which the conviction must be set aside, and error which the Assistant Attorney General has confessed. The judgment is reversed and the cause is remanded. Reversed and remanded.