Brown v. State

• Decision Date: 14 December 1898
• Citation: 48 S.W. 169
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

48 S.W. 169

BROWN v. STATE.

Court of Criminal Appeals of Texas.

December 14, 1898.

Appeal from district court, Guadalupe county; M. Kennon, Judge.

Archie Brown was convicted of perjury, and he appeals. Reversed.

J. B. Dibrell, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of perjury, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.

The only question that requires notice is involved in the charge of the court, and the special requested charge, which was refused by the court, on a vital issue in the case. The indictment contains but one count, and but one assignment in that count for perjury. The indictment alleges, after setting out the preliminaries, that then and there "it became and was a material inquiry before said court in said judicial proceeding whether the said Neyland on or about the 3d day of June, 1897, in the county of Guadalupe, about one mile and a half from the county line, had in his possession sixteen head of hogs, and was driving said hogs, the property of Berl Randell"; and it was further alleged that said appellant "willfully and deliberately stated and testified that the said Neyland on or about the 3d day of June, 1897, in the county of Guadalupe, about one mile and a half from the county line, did have in his possession sixteen head of hogs, the property of Berl Randell," which was false, etc. On the trial the state's testimony left it somewhat in doubt whether or not the defendant had stated on the before-mentioned trial that said hogs were the property of Berl Randell. The defendant contends that, inasmuch as the alleged perjury was predicated on evidence given in the examining trial, the written evidence should have been produced, and himself subsequently produced the written evidence of the examining trial. From that it does not appear that said witness stated that said hogs were the property of Berl Randell. The court on this issue instructed the jury as follows: "It was a material inquiry before the magistrate, in the prosecution of Neyland for the theft of hogs, whether on or about the 3d of June, 1897, the said Neyland had in his possession fifteen or sixteen head of hogs in Guadalupe county, Texas, about one mile and a half from the county line; and if the evidence, under the rules hereinbefore given you, shows that the defendant testified that the said Neyland did on or about the 3d day of June, 1897, have in his possession fifteen or sixteen head of hogs, about one mile and a half from the county line, in Guadalupe county, Texas, and if you find from the evidence, beyond a reasonable doubt, that the defendant so stated under his oath as a witness in said cause before said magistrate, and that he so stated willfully and deliberately, and that the statement so made by defen...