Anderson v. State

• Decision Date: 08 December 1886
• Citation: 7 S.W. 40
• Parties: ANDERSON v. STATE.
• Court: Texas Court of Appeals

Page 40

7 S.W. 40

ANDERSON v. STATE.

Court of Appeals of Texas.

December 8, 1886.

Appeal from district court, Henderson county; F. A. WILLIAMS, Judge.

Ned Anderson was indicted for perjury. The indictment alleged that, on the trial of one Green Wright, for unlawfully carrying a pistol on his person, in the town of Athens, Henderson county, this defendant appeared as a witness for the state, and testified that, on the night alleged in the information against said Wright, in the hallway of the Masonic building, the said Wright produced a pistol from his saddle-bags, which he exhibited to the witness, (this defendant,) and then placed back in his saddle-bags. This testimony, it was alleged in the indictment, was false and untrue, and was willfully and deliberately made by defendant under oath. The proof showed that the defendant was sworn as a witness for the state on the trial of Wright, and that he testified substantially as charged in the indictment against him. Wright appeared on this trial as a witness for the state, and testified that he had no pistol in his possession on the night testified to by defendant. Other witnesses testified that they saw Wright at the time he was charged to have had the pistol, and saw him in conversation with defendant. They saw his saddle-bags in his hands, but did not see him display a pistol. Several witnesses for the defense testified that they saw Wright at the time he was charged to have had a pistol. Some of them testified that they saw a pistol in his hands, and knew that he had one; others that they thought Wright had a pistol at that time, but could not be certain. Anderson was convicted and sentenced to five years in the penitentiary. He appeals.

J. B. Bishop, for appellant. Asst. Atty. Gen. Burts, for appellee.

HURT, J.

One Green Wright was tried before a justice of the peace for carrying a pistol on or about his person. The trial was had upon a complaint, and upon the hearing appellant was a witness, and, being charged with giving false testimony, was indicted and convicted of perjury. There is evidence in the record strongly tending to prove that the complaint was not sworn to. This being the case, it is insisted that the court should have instructed the jury that if they had a reasonable doubt as to whether the complaint was sworn to, they should acquit the defendant. Concede the fact that the complaint was not sworn to, does it follow that defendant could not commit perjury upon the trial under such complaint? There is no question as to the jurisdiction of the justice to hear and determine the cause then before the court. The court had jurisdiction of the offense, — the subject-matter of litigation. But appellant insists that the jurisdiction had never attached in that case, and hence there was no authority in the justice to swear the defendant, and, therefore, no perjury. Upon this subject, Mr. Bishop says: "Thus we are led to the further proposition that not only must the tribunal have jurisdiction of the cause, as before explained, but the cause must be properly in court." 1 Bish. Crim. Law, § 1028. To the same effect are all the authorities accessible to us at this place, for we have very carefully examined all of them. We have found two English cases bearing upon this question, one of which is directly in point. In Reg. v. Millard, Dears. Cr. Cas. 166, an information, not under oath, was laid before a justice against a prisoner for unlawfully damaging a carriage, and the prisoner was indicted for perjury committed on the hearing of that information. It was objected that the information ought to have been under oath, but it was held that, as the law did not require the information to be sworn to, therefore the justice had jurisdiction. It seems very clear that the converse would have been held if the law had required the information to be on oath. But we have a case precisely in point in Reg. v. Scotton, 5 Q. B. 493. The act of parliament rendered it necessary that an information should be verified on oath of a credible witness before any proceeding be taken for summoning the party accused, or compelling his appearance. The information not being thus verified, it was held that the justice had no jurisdiction, and consequently a person giving false evidence on such an occasion is not guilty of perjury. We deem it unnecessary to cite further authority in support of Mr. Bishop's proposition, namely, that the court must not only have jurisdiction of the cause of action, but that the jurisdiction of the cause must have attached in the particular case.

From these authorities it would seem to follow that the position of appellant is correct. We have no doubt of its correctness at common law; but how stands the question when viewed in the light of the provisions of our constitution? At common law, and, we suppose, in most of the states, to plead successfully former acquittal, the first trial must have been upon a good and sufficient indictment, information, or complaint. Is this the case in this state? Section 14 of the bill of rights reads: "No person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction." In some states it is held that jeopardy does not attach until verdict is rendered. In this state it is now held, and was at the time of making the constitution, the law of this state, that when the accused pleads to a good indictment before a court of competent jurisdiction, and the jury are sworn to try the case, jeopardy attaches. Now, if this be so, why provide that no person shall again be placed upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction? Is it not evident that this is inhibited...