Buller v. State

• Decision Date: 27 October 1894
• Citation: 28 S.W. 465
• Parties: BULLER v. STATE.
• Court: Texas Court of Criminal Appeals

28 S.W. 465

BULLER v. STATE.

Court of Criminal Appeals of Texas.

October 27, 1894.

Appeal from district court, Waller county; T. S. Reese, Judge.

G. W. Buller was convicted of perjury, and appeals. Reversed.

Walton & Hill, for appellant. R. L. Henry, for the State.

HURT, P. J.

Conviction for perjury. Appellant, Buller, was before the grand jury as a witness. The grand jury were inquiring into a charge of the supposed theft of a yearling, the property of William Rhome. The indictment alleges that it was a material issue before the grand jury whether G. W. Buller and Charles Smith had stolen said yearling. The matter assigned for perjury appears from the following facts, alleged in the indictment: "That G. W. Buller did state that himself and Charles Smith were gathering cattle to carry to Houston. As they went through the bottom, Charles Smith drove the Rhome yearling into the herd, claiming that he had bought it. As they were driving the cattle towards Houston, Sonie Freedman came up, and claimed the yearling for Rhome. They drove the yearling to Houston, and sold it; and, while inquiring into this matter, Buller, being a witness before the grand jury, stated that the cow and calf delivered to Rhome in payment for the yearling taken by him and Smith to Houston, and then disposed of were the property of Smith, and not his (Buller's) property. The indictment does not in terms allege that this statement was material. Does the indictment allege facts which make the statement material? It does not, for we cannot possibly perceive the materiality of this statement from the facts stated in the indictment. It may be contended, as the indictment charges in terms that "it then and there became and was a material inquiry before said grand jury * * * whether G. W. Buller and one Charles Smith did steal a yearling, the property of William Rhome," that this is sufficient. The matter before the grand jury was whether appellant and Smith had stolen Rhome's yearling. This was the main fact, — the factum probandum, — and, of course, was, in a certain sense, material. The testimony of witnesses—in fact, the whole investigation —was for the purpose of ascertaining the truth of the accusation. Did appellant and Smith, or either of them, steal Rhome's yearling? This was the fact to be established to the satisfaction of the grand jury. The subject-matter of inquiry—the theft of a yearling—was within the line of the grand jury's duty, and should have been...