Brinkley v. State, 24614

• Decision Date: 05 April 1950
• Docket Number: No. 24614,24614
• Citation: 154 Tex.Crim. 466,228 S.W.2d 522
• Parties: BRINKLEY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 522

228 S.W.2d 522

154 Tex.Crim. 466

BRINKLEY v. STATE.

No. 24614.

Court of Criminal Appeals of Texas.

April 5, 1950.

E. T. Miller, Amarillo, Simpson, Clayton & Fullingim, by E. A. Simpson, Amarillo, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

GRAVES, Judge.

This is a conviction for perjury alleged to have been committed by appellant in Cause No. 7939, State of Texas v. Orla L. Brinkley, in the District Court of Potter County, wherein the said Orla L. Brinkley was charged with the murder of a child. The indictment duly alleged the trial in said No. 7939, and after such preliminaries, it alleges that in said trial the appellant was administered the oath, it then having become material as to whether Orla L. Brinkley was at his home on August 30, 1948, the date the child died from multiple injuries. That portion of the indictment reads as follows: 'Whereupon it then became and was a material issue before said judge and jury in the trial of said judicial proceeding, whether or not the said Orla L. Brinkley was upon the premises of the private residence located at 3616 East 12th Street in the City of Amarillo, Potter County, Texas, between the hours of 3:00 o'clock P.M. and 4:00 o'clock P.M. on the afternoon of August 30th, 1948.'

The indictment then proceeds to set forth the testimony of appellant given in that murder trial, in which she swore under oath that between the hours of 3:00 and 4:00 o'clock on that day, she and her son (the accused in the murder trial) were not at her son's home, but were at another and different place. The State's testimony in that murder trial was that the accused, Orla L. Brinkley, was at his home on August 30th, 1948, between the hours of 3:00 and 4:00 o'clock P.M., and that he took his twenty months' old child into the garage thereon, and loud licks and a child's screams were heard therefrom; and that this little child died that night from multiple wounds on its body. The materiality of such testimony was alleged in said indictment as follows:

'Which Said Statement and Testimony, so given in evidence by the said Mrs. Bertha Brinkley, was material to the issues in said cause, in that the State of Texas, as plaintiff, had in said cause charged the said Orla L. Brinkley by indictment with having, on or about the 30th day of August, 1948, in the County of Potter and State of Texas, killed and murdered Joseph Michael Getz with a means and instruments to the grand jurors unknown, and with a flexible instrument and with a strap, to which said indictment the said Orla L. Brinkley had plead 'not guilty' and issue was duly joined.'

And further:

'And Whereas the State of Texas, as plaintiff, did by said pleading and proof make an issue of the fact as to whether or not the defendant, Orla L. Brinkley, was on the premises and in the back yard and the garage of the residence at 3616 East 12th Street, known as the Brinkley home, between 3:00 and 4:00 o'clock on the said 30th day of August, 1948, which said fact was material to said prosecution.'

'And Whereas the testimony given by the above named defendant, Mrs. Bertha Brinkley, tended to falsely establish an alibi for the defendant, Orla L. Brinkley, and to remove him from the scene of the alleged crime for which he was being prosecuted, and was material testimony in said cause.'

The indictment then alleges the falsity of the statement by appellant that her son was at another and different place from his home on such date at such time.

It is contended that these allegations are vague, indefinite and inconclusive in many respects; mainly, however, because it is alleged that the material issue between the State and the said Orla L. Brinkley in such case was whether or not Brinkley was at his home on said date between 3:00 and 4:00 o'clock p. m., on the date the child died. It is contended that the phrase, 'whether or not' renders the pleading negative in its effect, is in the alternative, and was not the material matter at issue therein.

We are cited to the case of Morris v. State, 83 Tex.Cr.R. 521, 204 S.W. 106, in which the indictment reads in part as follows:

'It 'was a material issue before said Judge and jury in the trial of said judicial proceeding as to whether or not the said Elmo Clark was in Travis county, Tex., and at the place where an assault was committed on E. W. Patterson, which place was about six miles west of Austin in Travis county, Tex., and occurred on Monday, November 13, 1916, about 4 o'clock p. m. And the said Julius Morris did then and there before the said judge and jury upon the trial of said cause, under the sanction of said oath administered to him as aforesaid, deliberately and willfully state and testify that said Elmo Clark was seen by him, the said Julius Morris, in the neighborhood of Miller's store in Bastrop county, Tex., on Monday, November 13, 1916,'--which statement is alleged to be material. The traverse reads as follows:

"Whereas, in truth and in fact, the said Elmo Clark was about six miles west of Austin, Travis county, Tex., at the place where an assault was committed on E. W. Patterson on the said 13th day of November, 1916 at about 4 o'clock p. m."

'We are of opinion that under the authority of Gallegos v. State, 50 Tex.Cr.R. 190, 95 S.W. 123; Maddox v. State, 28 Tex.App. 533, 13 S.W. , 866, and Scott v. State, 75 Tex.Cr.R. 396, 171 S.W. 243, this indictment is not sufficient. See, also, Donohoe v. State, 14 Tex.App. , 643; Lamar v. State, 49 Tex.Cr.R. , 565, 95 S.W. 509, and Miller v. State, 43 Tex.Cr.R. , 368, 65 S.W. 908. It was not material and could not be considered so under these authorities as to 'whether or not' Elmo Clark was at the place where Patterson was alleged to have been assaulted. That statement could not affect the accused, as we understand these decisions, whether Clark was there or whether he was not there. If Elmo Clark was the man sought to be shown by the facts who assaulted Patterson, and appellant was testifying to an alibi for Clark, the indictment should have so charged. The materiality of the question would be that appellant swore that Clark was in Bastrop county at the time the assault was made upon Patterson by Clark at the point where the assault was made. It was not material as to 'whether or not' these conditions existed. The materiality would be that he was not present and committed the assault. If appellant testified falsely that Clark was in Bastrop county when Clark assaulted Patterson six miles west of Austin, this would be material.

'The judgment will be reversed, and the cause dismissed.'

We have read the above cited cases and confess our inability to understand the reasoning therein. The cited cases do not bear out the proposition that the phrase 'or not' would render the indictment vague, uncertain and negative in its allegation relative to the material matter at issue.

Undoubtedly the matter at issue therein at such trial was whether the accused, Orla L. Brinkley, was present at the time and place the baby was alleged to have been beaten or whether he was not there present at such time. The State contended that he was thus present; the accused, Orla L. Brinkley, contended he was not present at such place at such time and therefore could not have killed such child. The appellant's testimony became material in that she swore he was not there but was at another place at such time. The issue was material as to whether he was at such scene at the time of the beating of the child, or whether he was not at such scene. There could not be a material issue unless there were two basic contrary ideas there, and both ideas to the issue are found in the phrase 'whether or not.'

Again, it is contended that allegations of how the matter complained of herein became material can be alleged in more than one way. It is held in 41 Amer.Jur. p. 25, as follows: 'Two modes are generally recognized by which the materiality of the alleged false statements may be shown in a pleading charging perjury: (1) by setting forth the nature of the issue and the evidence given thereon, so that as a matter of law it may be said the testimony on which the perjury is assigned is material to the issue; (2) by showing an action at issue in a court of competent jurisdiction, the testimony given, coupled with the averment that it was material to the issue. Both methods may be employed in the same indictment.'

It is worthy of note that the testimony of appellant given at the trial or Orla L. Brinkley, in so far as it affected the issue, is incorporated in the indictment herein and under 21 R.C.L., p. 268, as herein below quoted, we suggest that the materiality of such testimony of appellant is shown, and that is, that at the time and place testified to by Mrs. Keesee, and other State's witnesses, which testimony is set forth in the indictment, appellant's testimony alleged herein to be false, shows that Orla L. Brinkley was not at the place where the child received its beating and thereby shows that he was at a different place at such time. We quote from 21 R.C.L., p. 268, sec. 14, as follows: 'It is requisite that the materiality of the false swearing to the issue or point of inquiry should appear either by a general averment or by the facts set forth, and an averment that 'it became and was material to ascertain the truth of the matter hereinafter alleged to have been sworn to' is not a good averment of materiality. Two modes are recognized by which the materiality of the alleged false statements may be shown in a pleading charging perjury: (1) by setting forth the nature of the issue and the evidence given thereon, so that as a matter of law it may be said the testimony on which the perjury is assigned is material to the issue; (2) by showing an action at issue in a court of competent jurisdiction, the testimony given, coupled with the averment that it was material to the issue.'

We find practically the same as just above...