Davis v. State

• Decision Date: 10 June 1925
• Docket Number: (No. 8705.)
• Citation: 296 S.W. 605
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

296 S.W. 605

DAVIS v. STATE.

(No. 8705.)

Court of Criminal Appeals of Texas.

June 10, 1925.

Rehearing Denied June 24, 1927.

Commissioners' Decision.

Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.

A. A. Davis was convicted of perjury, and he appeals. Affirmed.

A. M. Felts and Chas. L. Black, both of Austin, for appellant.

Dan Moody, Dist. Atty., of Austin, Wilcox & Graves, of Georgetown, Tom Garrard, State's Atty., of Lubbock, and Grover C. Morris, Asst. State's Atty., of San Antonio, for the State.

BAKER, J.

Appellant was convicted in the criminal district court of Williamson county for perjury, and his punishment assessed at two years in the penitentiary.

Briefly stated, the record discloses the facts to be, as contended by the state, that the prosecuting witness, R. W. Burleson, on April 1, 1923, and prior thereto, was rooming and boarding with Mrs. Fannie Campbell in the town of Weir, in said county, and prior to said April 1st, the appellant while in an automobile with two other men drove up to the house of Mrs. Campbell, called the said Burleson out, and appellant accused him with having improper relations with Mrs. Campbell, stating, "We have investigated and find that you are living in adultery with Mrs. Campbell, if this be so, it must be stopped," which was denied by said witness, and appellant then delivered to said witness a written notice upon Klan stationery, headed "Georgetown Klan 178 K.K.K.," with the impress of the Klan seal thereon, and immediately drove away. About a week thereafter, said witness had a conversation with said defendant about delivering said notice to him, in which the defendant asked him if he had an eyewitness as to his being the man who delivered said notice. On April 1st thereafter, said witness was taken from an automobile by five or six men, who beat him over the head with pistols, put a sack over his head, carried him off a short distance, and beat him up. While all of this was in progress, they asked said witness about the Ku Klux he was going to kill, about the conversation had at the time said notice was delivered to him, and if he stayed at Mrs. Campbell's after receiving said notice. The record further shows that the contended relationship of said witness and Mrs. Campbell was discussed at the meeting of said Klan or just after same was closed prior to said April 1st, when some asked what was going to be done about that matter, and appellant replied he would attend to that or see to it. Thereafter the grand jury, while investigating charges against Jackson, Gossett, Ball, Hewlett, and Threadgill for said assault upon said witness, had the defendant before them and interrogated him under oath about said conversations with and delivering of said notice to said prosecuting witness, in said town of Weir, all of which he denied doing or having any knowledge thereof and being at said place, and upon his said testimony before said grand jury he was indicted for perjury and convicted therefor. The appellant did not testify and produced no testimony except testimony showing or tending to show he was not present at the place of the assault, but at said time preaching at another and different place. The above is a sufficient statement of the facts for a discussion of the questions of law brought before this court for review.

The first complaint made by appellant in this court is the refusal of the trial court to quash the indictment, for 16 reasons set out in said motion, but from his brief we are led to believe the main objection relied upon was alleged error in counts 1 and 3 thereof, being the only counts submitted to the jury, contending it was not alleged to be a material inquiry before said grand jury whether defendant delivered the notice in question and had the conversation with said Burleson on April 1, 1923, in town of Weir, and that same was not a material inquiry and showed no connection with the said alleged assault. The indictment, counts 1 and 3, covering the allegations complained of, are in part as follows:

"Whereupon it then and there became and was a material inquiry before said grand jury and necessary for the due administration of the criminal laws of said state, and for the ends of public justice, whether, in the county of Williamson and state of Texas, on or about the 1st day of April, A. D. 1923, Murray Jackson, Olen Gossett, Dewey Ball, R. A. Hewlett, and Sam Threadgill, who stood charged by complaints duly made and filed on the 4th day of April, A. D. 1923, before the proper tribunal, with the offense of an assault with a prohibited weapon, in fact whether Murray Jackson, Olen Gossett, Dewey Ball, R. A. Hewlett, and Sam Threadgill and whether either of them did, on or about the 1st day of April, A. D. 1923, in Williamson county, Tex., unlawfully commit an assault and battery in and upon R. W. Burleson with pistols, while the said pistols were being unlawfully carried on and about their persons by the said Murray Jackson, Olen Gossett, Dewey Ball, R. A. Hewlett, and Sam Threadgill, and the said Murray Jackson, Olen Gossett, Dewey Ball, R. A. Hewlett, and Sam Threadgill did then and there therewith and thereby beat, strike, wound, and bruise the said R. W. Burleson, and did therewith and thereby inflict serious bodily injury upon the said R. W. Burleson, as charged in said complaints. * * * And it became and was then and there a material inquiry in said investigation before and by said grand jury whether, at the time of the alleged assault upon the said R. W. Burleson, he, the said R. W. Burleson, was asked if he stayed at Mrs. Campbell's after he received a notice, and to said material investigation and to said material inquiry it became and was then and there a material inquiry in said investigation whether the said A. A. Davis, on or about the 16th day of January, A. D. 1923, went to Weir, a place in Williamson county, Tex., and had a conversation with R. W. Burleson and delivered to R. W. Burleson a piece of paper on which were, in substance, the words, `Georgetown Klan No. 178 K. K. K.,' and on which paper the imprint of a seal had been made, and whether at any time prior to April 1, 1923, the said A. A. Davis went to Weir, a place in Williamson county, Tex., and had a conversation with R. W. Burleson in which the said A. A. Davis, in substance, accused the said R. W. Burleson of improper relations with a woman called Mrs. Campbell, and, in substance, told the said R. W. Burleson that he must discontinue his associations with the said Mrs. Campbell, and delivered at the time of said conversation a paper to the said R. W. Burleson on which were in substance, the words, `Georgetown Klan No. 178, K. K. K.,' and on which paper the imprint of a seal had been made. And the said A. A. Davis did on the day and date first above named (that is, on or about the 10th day of May, A. D. 1923) in Williamson county, Tex., before and to the said grand jury, under the sanction of the said oath administered to him as aforesaid, willfully and deliberately state and testify, among other things, in substance and to the effect, the following."

After setting out the testimony of the said A. A. Davis, the count proceeds:

"And which said statement and testimony was then and there material to the inquiry aforesaid and to the matter then and there under investigation by said grand jury."

The indictment then proceeds to set out the truth of the matter with reference to the testimony alleged to have been given by the appellant before said grand jury.

The third count in the indictment, after alleging the organization of the grand jury and that the appellant appeared before the grand jury and was sworn as a witness, proceeds as follows:

"Whereupon it then and there became and was a material inquiry before said grand jury and necessary for the due administration of the criminal law of said state, and for the ends of public justice, whether in the county of Williamson and state of Texas, on or about the 1st day of April, A. D. 1923, Murray Jackson, Olen Gossett, Dewey Ball, R. A. Hewlett, and Sam Threadgill did then and there unlawfully and willfully, while then and there unlawfully carrying on and about their persons pistols, with said pistols, in and upon R. W. Burleson make an assault."

After setting out the testimony alleged to have been given by the appellant before the grand jury, the count proceeds:

"And which said statement and testimony was then and there material to the inquiry aforesaid, and to the matter then and there under investigation by the said grand jury."

The further portion of the count of the indictment undertakes to allege the truth with regard to the testimony given by the appellant before the grand jury. We are unable to agree with the contention made by the appellant relative to the allegations in said indictment, and upon inspection it will be shown that the allegations therein are sufficient, and that the testimony of said defendant before said grand jury was material to the issues under investigation, and said counts go into detail to show importance of said testimony and said investigations with all the degree of certainty that the law requires in such cases. The authorities cited by appellant on the questions under consideration are not applicable to the facts of this case. Branch Ann. P. C. § 840, p. 473, announces the law correctly, which states:

"The materiality of the alleged false statement is sufficiently alleged if it is simply averred that it was material to the issue, and if such averment is made it is not necessary that the allegations of the indictment show how such statement became material" (citing Massie v. State, 5 Tex. App. 86, Jones v. State, 76 Tex. Cr. R. 398, 174 S. W. 1073, and many other authorities which, we believe, hold against the contention of appellant).

Appellant complains in bill of exception No. 3 of the court's action in permitting the state to prove the...