Anderson v. State

• Decision Date: 19 May 1909
• Citation: 120 S.W. 462
• Parties: ANDERSON v. STATE.
• Court: Texas Court of Criminal Appeals

120 S.W. 462

ANDERSON v. STATE.

Court of Criminal Appeals of Texas.

May 19, 1909.

On Rehearing, June 9, 1909.

Appeal from District Court, Guadalupe County; M. Kennon, Judge.

John Anderson was convicted of perjury, and he appeals. Affirmed.

Dibrell & Mosheim, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

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

The indictment in this case is as follows: "The grand jurors for the county of Guadalupe, state aforesaid, duly organized as such at the fall term, A. D. 1907, of the district court of Guadalupe county, upon their oaths present in and to said court that John Anderson, on or about the 15th day of May, 1907, and anterior to the presentment of this indictment in the county of Guadalupe and state of Texas, in and before the district court of Guadalupe county, at its regular term holden in and for, and then and there in session in, said county, the Hon. M. Kennon, who was then and there the legally qualified judge of said court, presiding; and in a certain criminal judicial proceeding in said court, and of which said criminal judicial proceeding the said court then and there had jurisdiction, and in which said criminal judicial proceeding the state of Texas was plaintiff and Charley McClure was defendant, and wherein said Charley McClure was duly and legally charged by indictment with having killed and murdered one Wash Anderson, in that it was thereby then and there so charged that Charley McClure on or about the 4th day of November, 1906, in the county of Guadalupe and state of Texas, did then and there (meaning the time and place last above mentioned) unlawfully, with malice aforethought, kill Wash Anderson by then and there (meaning the time and place last above mentioned) shooting him, the said Wash Anderson, with a pistol and a gun, and by then and there (meaning the time and place last above mentioned) stabbing and cutting him, the said Wash Anderson, with a knife and other sharp instrument, and by then and there (meaning the time and place last above mentioned) striking and beating him, the said Wash Anderson, with a stick and a rock, and by then and there (meaning the time and place last above mentioned) burning him, the said Wash Anderson, with fire, and by then and there (meaning the time and place last above mentioned) using other means and instruments to these grand jurors (meaning the grand jurors who presented said indictment) unknown, by which he killed and murdered him, the said Wash Anderson, against the peace and dignity of the state, and in which said criminal judicial proceeding issue was then and there in said court in said county and state on or about said May 15, 1907, aforesaid, duly and legally joined between said state of Texas and the said Charley McClure, and came on to be tried in due form of law before said judge and a jury duly organized in said cause, and in that behalf legally impaneled and sworn, and was at said last-mentioned time and place tried before said judge and jury, and then and there in said court upon the said trial John Anderson came and appeared in person as a witness in behalf of the state of Texas, and was then and there in and before said court at and during said trial duly and legally sworn, and did then and there take his corporal oath before said court and jury as a witness to testify in said cause on said trial, which oath was then and there required by law and necessary for the ends of public justice; and which said oath was then and there in said court on said trial duly administered to him, the said John Anderson, as aforesaid, by John T. Campbell, the clerk of said court, who was when administering same then and there authorized and qualified by law to so administer the said oath in that behalf and in the matter and cause aforesaid, and at and upon the said trial of the said issue, joined as aforesaid, between the said parties as aforesaid, it then and there became and was a material question and inquiry whether said Charley McClure at a place where said John Anderson and others had been gambling about two miles or two and a half from said Wash Anderson's house on the night of November 2, 1906, said that he, Charley McClure, was going to kill him, the said Wash Anderson, and whether said Charley McClure at the time and place last named, speaking to said Wash Anderson, further said. `You might as well give him (meaning Louis McClure) a stake, God damn you; I am going to kill you anyway,' and whether said Charley McClure at said last-named time and place said to Wash Anderson, `I intended to kill you long ago for ordering me out in front of old lady Bell,' and whether said Charley McClure at said last-named time and place said to Wash Anderson, `I intended to kill you, and I am going to kill you;' and the said John Anderson being so sworn as aforesaid, then and there in said court, before said judge and jury on the trial of said issue and cause, upon his said oath administered to him as aforesaid, did, under the sanction of said oath administered to him as aforesaid, falsely, willfully, and deliberately, before the said court, judge, and jury, depose, state, and testify (among other things) in substance and effect as follows, to wit: That said Charley McClure at a place where said John Anderson and others had been gambling about two miles or two miles and a half from said Wash Anderson's house on the night of November 2, 1906, said that he, Charley McClure, was going to kill him, the said Wash Anderson, and, speaking to said Wash Anderson, further said, `You might as well give him (meaning Louis McClure) a stake, God damn you; I am going to kill you anyway,' and `I intended to kill you long ago for ordering me out in front of old lady Bell,' and `I intended to kill you, and I am going to kill you;' and which said statements, and each of them and every part thereof, so made by the said John Anderson, were then and there in said court and on said trial material to the issue in said cause; whereas in truth and in fact said Charley McClure was not on said night of November 2, 1906, at said place where said John Anderson and others had been gambling, about two miles or two miles and a half from Wash Anderson's house, and did not at said time and place last named speak a single word to said Wash Anderson, and did not at said last-named time and place, or at any time or place, say that he, Charley McClure, was going to kill him, said Wash Anderson, and did not at said time and place last named, or at any time or place, say to Wash Anderson, `You might as well give him a stake, God damn you; I am going to kill you anyway,' and did not at said last-named time and place, or at any time or place, say to Wash Anderson, `I intended to kill you long ago for ordering me out in front of old lady Bell,' and did not at said time and place last named, or at any time or place, say to Wash Anderson, `I intended to kill you, and I am going to kill you,' and did not at said last-named time and place, or at any time or place, use said language set forth in said statement of said John Anderson, or any part of it, to said Wash Anderson; and which said statements, and each of them, and every part of them and each of them, so made by said John Anderson as a witness in said cause in the manner and form aforesaid, were deliberately and willfully made, and were deliberately and willfully false, as he, the said John Anderson, then and there well knew when he made same, against the peace and dignity of the state."

Appellant files the following motion to quash the indictment:

(1) "Because said indictment fails to charge any offense against the criminal laws of this state, and of this general exception defendant prays judgment of the court."

(2) "Because said indictment does not allege and charge affirmatively and in plain and unequivocal language that there was pending before the district court of Guadalupe county a criminal judicial proceeding in which defendant was called to testify and give evidence."

(3) "Because said indictment alleges that the material question and inquiry before said court was: `Whether said Charley McClure, at a place where said John Anderson and others had been gambling about two miles or two miles and a half from Wash Anderson's house on the night of November 2, 1906, said that Charley McClure was going to kill him, the said Wash Anderson, and whether Charley McClure at the time and place last named, speaking to said Wash Anderson further said, "You might as well give him (meaning Louis McClure) a stake, God damn you; I am going to kill you any way," and whether said Charley McClure at said last-named time and place said to Wash Anderson, "I intended to kill you long ago for ordering me out in front of old lady Bell," and whether said Charley McClure at said last-named time and place said to Wash Anderson, "I intended to kill you, and I am going to kill you,"' and said indictment further alleges and charges that the witness, John Anderson, testified in substance the matters and things alleged to be material as hereinbefore set out, and said indictment fails to negative the truth of said testimony and state the true fact as required by law, said negativing clause being as follows: `Whereas, in truth and in fact, said Charley McClure was not on said night of November 2, 1906, at said place where said John Anderson and others had been gambling, about two miles or two miles and a half from Wash Anderson's house, and did not at said time and place last named speak a single word to said Wash Anderson, and did not at said last-named time and place, or at any time or place say that he, Charley McClure, was going to kill him, said Wash Anderson, and did not at said time and place last named, or at any time or place, say to Wash Anderson, "You might as well give him a stake, God damn you; I am going to kill you anyway,"...