Carter v. State, 21024.

• Citation: 144 S.W.2d 582
• Decision Date: 29 May 1940
• Docket Number: No. 21024.,21024.
• Parties: CARTER v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 582

144 S.W.2d 582

CARTER v. STATE.

No. 21024.

Court of Criminal Appeals of Texas.

May 29, 1940.

Rehearing Denied November 27, 1940.

Commissioners' Decision.

Appeal from Criminal District Court No. 2, Harris County; Langston G. King, Judge.

John T. Carter was convicted of perjury, and he appeals.

Affirmed.

Kahn & Branch, John N. Snell, Sr., and Kenneth H. Aynesworth, Jr., all of Houston, for appellant.

Dan W. Jackson, Cr. Dist. Atty., and Allie L. Peyton, Asst. Cr. Dist. Atty., both of Houston, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is perjury. The punishment assessed is confinement in the state penitentiary for a term of three years.

The record shows that appellant was a member of the jury before whom Vincent Vallone was tried in the Criminal District Court No. 2 of Harris County, Texas, for the murder of J. I. Thomas. The jury found Vallone guilty of murder with malice and assessed his punishment at confinement in the state penitentiary for life. Vallone, in due time, filed a motion for a new trial and subsequently an amended motion for a new trial in which he set up, among other grounds, that some one or more of the jurors, while deliberating on their verdict, stated that the defendant, Vallone, had been accused of the murder of one Navarro; that no evidence thereof had been introduced on the trial. Appellant made an affidavit in which he stated the facts above set forth to substantiate the averments in the motion for a new trial. By written pleading, the State denied the averments in the motion, contested the same and supported its pleading by the affidavits of the other eleven members of said jury.

The perjury indictment in this case is based upon the alleged false affidavit of the appellant Carter.

Appellant challenges the sufficiency of the indictment upon the following grounds:

"1. Because the indictment in this case is fatally defective in substance, and therefore defendant suggests to the court that the judgment has not been legally rendered against him."

"2. Because the indictment herein is defective in substance because it charges no offense against the laws of this State."

"3. Because the indictment herein is defective in substance because there is no allegation that there was any issue made on the amended motion for a new trial in the case of State of Texas v. Vincent Vallone."

"4. Because the indictment herein is defective because there is no allegation that the affidavit mentioned in the indictment was material to any issue.

"5. Because the indictment herein is defective because it does not allege that there was any issue joined on the hearing of the motion for new trial."

"6. Because the indictment is defective because there is no allegation that the affidavit was to be used or was used as evidence, and if the affidavit was not used as evidence, then it, with the motion, was but a pleading, and would not substantiate the motion merely because it was attached to the amended motion for a new trial."

Omitting the formal parts, the indictment reads as follows: "That on the 16th day of October, A. D., 1939, in said county and state, in the Criminal District Court Number Two of Harris County, Texas, then in session, and of which said court Langston G. King was then and there the legally qualified judge, there was pending a certain criminal judicial proceeding wherein the State of Texas was the plaintiff and one Vincent Vallone was the defendant, wherein said Vincent Vallone was duly and legally charged by indictment with having on or about the 29th day of August, A. D., 1939, in the County of Harris and State of Texas, with malice aforethought, voluntarily killed J. I. Thomas by shooting him with a gun, and of which said judicial proceeding the said Court then and there had jurisdiction, and wherein issue was then and there duly joined between the said State of Texas and the said Vincent Vallone, before the said judge and a jury was duly organized to try said issue, of which said jury John T. Carter was then and there a member, duly selected and sworn to serve thereon; and, the said Vincent Vallone having been duly arraigned and evidence having been adduced by both sides, and both sides having rested and the Court having charged the jury, and the jury having retired to deliberate on its verdict in said cause, the said jury then and there duly returned into Court its verdict in said cause as follows: `We, the jury, find the defendant, Vincent Vallone, guilty of murder as charged and assess his punishment by confinement in the State penitentiary for life'; and thereafter on the 20th day of October, 1939, within two days from said conviction, the said Vincent Vallone duly filed his original motion for a new trial, and on the 31st day of October, 1939, before the expiration of the term of said Court the said Vincent Vallone duly filed in said Court his amended motion for new trial in said cause, setting forth in said motion as alleged grounds for granting a new trial, among others the following: `Because the jury after having retired to deliberate upon this case, received other testimony of a material nature in this, that the jurors stated that the defendant was accused of the murder of one Navarro, when there was no testimony in the entire case, directly or indirectly, intimating that the defendant was ever accused of such an offense, and the defendant asserts that he had never been arrested or indicted for said killing, nor has any kind of a charge been made in any court charging him with such an offense. That the killing of Navarro was never mentioned during the trial, and that said testimony so given by the jurors was before they reached the verdict and in the absence of the defendant and without any opportunity of cross-examination, said statement of accusing the defendant of having killed Navarro was prejudicial, was inflammatory to the minds of any jurors who had never heard thereof and was calculated to increase the penalty which it did, and that said statement was evidently made for the purpose of influencing said jurors who were for a lesser penalty to agree to a higher penalty and same was used by the jury not alone to affect defendant's guilt, but to induce those jurors who were for a lesser penalty to agree to a life sentence, and the defendant again refers the court to the affidavit of said juror, J. T. Carter, hereto attached and mentioned in the preceding paragraph'; and there was then and there attached to said amended motion for a new trial in said cause, and filed with said motion by said Vincent Vallone as a part of said motion and as supporting evidence of the allegations of said motion, an affidavit of the said John T. Carter, who had served as a juror in the trial of said cause, said affidavit being then and there filed and presented to the Court by the said Vincent Vallone in an effort to procure the granting of a new trial in said cause; and prior to the filing of said amended motion for a new trial and the filing of said affidavit in connection therewith, to-wit, on the 30th day of October, A. D., 1939, in said Harris County, Texas, the defendant herein, John T. Carter, did then and there make and swear to said affidavit, same being a statement in writing, and did take oath to the truth of the said statement by then and there personally appearing before Catherine F. Leonard, a notary public in and for Harris County, Texas, a person authorized by law to administer oaths and the said John T. Carter did then and there take his corporal oath before said notary public, which said oath was duly administered to him by said notary public, and was required by law and was necessary for the ends of public justice, and under the sanction of said oath the said John T. Carter did then and there, wilfully and deliberately state in writing that during the deliberations of the jury in said cause the jury and the members thereof discussed the case where the defendant in said cause, Vincent Vallone, had been accused of the murder of one Navarro, which said statement was material in said cause for the purpose of substantiating the allegations contained in said amended motion for a new trial, and the said John T. Carter then and there knew that said affidavit and statement would be presented to the said Court in connection with said amended motion for new trial; whereas in truth and in fact the jury and the members thereof did not discuss the case where the defendant, Vincent Vallone, had been accused with the murder of one Navarro, and did not discuss or mention the killing of one Navarro; which said statement so made by the said John T. Carter was wilfully and deliberately false, and the said John T. Carter knew the same to be false when he made it."

The first two grounds urged by appellant against the sufficiency of the indictment are general, and in our opinion, are covered by the more specific objections Nos. 3, 4, 5 and 6. Consequently, we shall first discuss the third objection and the remainder in their numerical order.

Appellant claims that there is no allegation in the indictment to the effect that there was any issue made on the motion for new trial in the case of Vincent Vallone v. State of Texas, Tex.Cr.App., 147 S.W.2d 227. Looking to the indictment, we note that Vincent Vallone, in his amended motion for a new trial, set up matters relating to the misconduct of the jury which, if true, might have entitled him to a new trial, and to this motion, Vincent Vallone attached the affidavit of the appellant substantiating the averments therein. The motion, together with the affidavit of the appellant supporting the averments therein, was required by law to entitle him to a hearing thereof. Consequently, an issue was raised as against the validity of the verdict of the jury and the judgment of the court based thereon. It was charged in the indictment that the appellant, John T. Carter, under the sanction of...