Clay v. State

• Decision Date: 12 February 1908
• Citation: 107 S.W. 1129
• Parties: CLAY v. STATE.
• Court: Texas Court of Criminal Appeals

107 S.W. 1129

CLAY v. STATE.

Court of Criminal Appeals of Texas.

February 12, 1908.

Appeal from District Court, Collin County; J. M. Pearson, Judge.

Fletcher Clay was convicted of perjury, and he appeals. Affirmed.

Abernathy & Mangum, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of perjury, and his punishment assessed at two years' confinement in the penitentiary.

Appellant's first ground of his motion for a new trial is that the court erred in failing to define to the jury the meaning of the term "deliberately." The court did tell the jury, however, that, if they found from the evidence that he made through inadvertence or under agitation or by mistake the statement upon which the perjury is predicated, to find him not guilty. Furthermore, the charge says a false statement made through inadvertence or under agitation or by mistake is not perjury. We think these sections of the charge cited cover appellant's complaint, and there was no error in not specially defining the word "deliberately."

Appellant further objects to this charge of the court: "On the other hand, if you find and believe from the evidence that the justice of the peace, J. W. Nichols, did not administer an oath to the defendant on the occasion when the defendant is alleged to have made the false statements, then you will acquit the defendant." Clearly appellant cannot complain of this charge. The court had charged that, if he was sworn and made the false statements set up in the indictment, it would be perjury; and certainly it was correct to charge the converse—if he did not do so, he would not be guilty.

The fourth assignment of error complains that the court erred in charging the jury that, "if they found and believed from the evidence that the defendant saw a game of cards played, or engaged in a game of cards with John Powell, John Lyon, and Pete Wilcoxson, in Collin county, Tex., but you further find and believe from the evidence that the game or games were played at a different time than on and about the 15th day of September, 1906, then you will acquit the defendant," for the reason that said charge placed the burden upon the defendant to prove that the playing was at a different time other than that alleged in the indictment. We do not believe there is any merit in this position. Certainly, if he played at another time than that alleged in the indictment, he would not be guilty.

The oath administered to appellant was as follows: "Do you solemnly swear that you will true and correct answers make to all such questions as may be propounded to you by the court on this occasion, to be the truth, concerning the penal laws of Texas; so help you God?" Appellant insists that this oath is not a legal oath, since the only authority that said officer had, if any, was to swear and examine the defendant with reference to violations of the penal laws of Texas. We understand the oath covers the very question that appellant insists the court could inquire into. The statute does not define any form of oath, and we see no legal objection to the one here administered. The justice might have added, "touching violations of the penal laws...