Beach v. State

• Decision Date: 03 June 1893
• Citation: 22 S.W. 976
• Parties: BEACH v. STATE.
• Court: Texas Court of Criminal Appeals

22 S.W. 976

BEACH v. STATE.

Court of Criminal Appeals of Texas.

June 3, 1893.

Appeal from district court, Erath county; C. K. Bell, Judge.

Lute Beach was convicted of perjury, and appeals. Affirmed.

Frank & Devine and Young & Martin, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

Appellant was convicted of perjury, and his punishment assessed at five years' confinement in the penitentiary, from which he appeals.

1. The appellant complains that the court erred in permitting the state's witness to testify that in swearing to the application for continuance, upon which the perjury was assigned, he swore that the facts therein set forth were true to the best of his knowledge and belief, for the reason that there was no allegation to that effect in the indictment. It is wholly immaterial whether appellant swore to the truth of the facts set forth according to the best of his knowledge and belief, or that they were absolutely true. In either event he was duly sworn within the meaning of the Code.¹ It was not necessary that the indictment should set forth the form of the oath. It was sufficient to allege that appellant was duly sworn. West's Case, 8 Tex.App.122; Massie's Case, 5 Tex. App. 84. If the form of the oath or the manner of administering it had been needlessly set forth, then the proof would have to correspond. West's Case, supra.

2. The appellant complains that the court erred in submitting to the jury the assignments of perjury upon the allegation that the witness John Thompson was not absent by the procurement or consent of defendant — First, because there was no testimony supporting either assignment except John Thompson's evidence; and, second, the character of said Thompson for truth and veracity was clearly shown to be bad; and, besides, he was an accomplice. If appellant's position is correct, the court erred in submitting the issue when there was no evidence to support it; but we do not agree with counsel as to the facts. The record shows that, Lute Beach being indicted for carrying a pistol, his case was called for trial on the morning of December 10, 1888, at 11:30 or 12 o'clock, when defendant asked time to prepare an application for a continuance. The court adjourned; and immediately before it met after dinner, Lute Beach went before the clerk, and swore to his application, and when court met he presented it. This was at 1 o'clock. The application was based on the absence of one John Thompson, who would swear "the so-called `pistol' was a bottle of whisky." Leaving out Thompson's testimony, it is shown that the witness Thompson came to town in a wagon with the two Laney brothers. They reached town before court adjourned in the morning. Defendant, shortly after their arrival, was seen with Thompson in front of a saloon, where they had a private conversation together, and afterwards was seen drinking with him in the rear of the saloon, and knew of his presence in town at the time he swore to the application for a continuance. All the witnesses show that Thompson was in town from 11 o'clock until after 3, and at one time was in the courthouse, and most of the time upon the courthouse square, or in the saloon on the square. The witnesses Tom Laney, Oxford, and Barnes unquestionably show Beach and Thompson were together before and during the adjournment of court. We think the testimony ample to support the action of the court in presenting the issues to the jury whether the witness was absent by the procurement or consent of the appellant. Knowing that Thompson had come to town, (Stephensville,) he asked time to prepare an application for a continuance on account of his absence, and employed the hour of adjournment in preparing an application for an alleged absent witness, who he knew was present, and with whom he was drinking and holding private conversations in a stone's throw of the courthouse. It would be an affectation of doubt to say that the witness may have been absent without his consent.

3. But, if there was, we could see no reason for disturbing the verdict upon the second and third assignments of perjury, "that the application was not made for delay," and "that there was no reasonable expectation that the attendance of said witness can be procured during the present term of the court by a postponement of the trial to some future day of the term." The undisputed facts in the case show the contrary to be true. The process of the courts was appellant's command to enforce the attendance of the witness then and there if he was un willing to come into the courthouse.

4. But it is insisted that the verdict is fatal because it does not appear upon what...