Emery v. State

• Citation: 123 S.W. 133
• Parties: EMERY v. STATE.
• Decision Date: 15 December 1909
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

123 S.W. 133

EMERY v. STATE.

Court of Criminal Appeals of Texas.

December 15, 1909.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Will Emery was convicted of perjury, and he appeals. Reversed and dismissed.

Wm. H. Hanson and Sawnie Robertson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The appellant was convicted for perjury; his punishment being assessed at two years' confinement in the penitentiary.

The facts show that appellant was a witness in the case of Thompson v. State, who during his trial for the crime of rape was used as a witness for the defendant, and testified to certain facts upon which the perjury alleged in the indictment is based. Appellant's contention is that he is not guilty of perjury conceding his testimony to be false. The facts show that Thompson, defendant in the rape case, was on bail; that during the trial, and after the first witness for the state had testified, Thompson absented himself from the court, was not thereafter present during the trial, and was absent at the time appellant in this case testified. In other words, Thompson was present during the trial up to and including the time covered by the testimony from the first witness for the state; that he then left the court and was not present during any stage of the further progress of the trial; that during his absence appellant in this case testified, and the trial of Thompson proceeded to its close during the absence of Thompson. Under this state of facts, it is contended by appellant the crime of perjury could not be committed. The Constitution (Article 1, § 10) provides that the accused shall be confronted by the witnesses. Article 633, White's Ann. Code Cr. Proc., thus reads: "In all prosecutions for felonies, the defendant must be personally present on the trial, and he must likewise be present in all cases of indictment or information for misdemeanors where the punishment or any part thereof is imprisonment in jail." The cases are entirely harmonious to the effect that evidence cannot be introduced in the absence of the accused. Bell v. State, 32 Tex. Cr. R. 436, 24 S. W. 418; Hill v. State, 54 Tex. Cr. R. 646, 114 S. W. 117. The presence, therefore, of the accused in court and before the jury during the trial of his case is a jurisdictional question, and such presence is absolutely necessary to the validity of the trial.

There are three facts that seem to be absolutely necessary to the jurisdiction of the court or as jurisdictional questions: First, the court must have jurisdiction of the person; second, of the subject-matter; and, third, to render the particular judgment rendered. Otherwise, the prosecution will be void, as also the judgment. Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111, where a great number of cases are collated; Ex parte Taylor, 34 Tex. Cr. R. 594, 31 S. W. 641; Ex parte Kearby, 35 Tex. Cr. R. 538, 34 S. W. 635; Ex parte Kearby, 35 Tex. Cr. R. 644, 34 S. W. 962; Ex parte Duncan, 42 Tex. Cr. R. 661, 62 S. W. 758; Ex parte Tinsley, 37 Tex. Cr. R. 517, 40 S. W. 306, 66 Am. St. Rep. 818; Ex parte Lake, 37 Tex. Cr. R. 656, 40 S. W. 727, 66 Am. St. Rep. 848; Parker's Case, 35 Tex. Cr. R. 12, 29 S. W. 480, 790; Ex parte Juneman, 28 Tex. App. 488, 13 S. W. 783; Ex parte Snodgrass, 43 Tex. Cr. R. 359, 65 S. W. 1061. All the cases hold that the jurisdiction of the person is essential to the validity of a proceeding; otherwise, it is a nullity and void. This rule has been followed in Texas in its history. Fleming v. Nall, 1 Tex. 250; Tulane v. McKee, 10 Tex. 335; Glass v. Smith, 66 Tex. 548, 2 S. W. 195; Mitchell v. Runkle, 25 Tex. Supp. 132; Horan v. Wahrenberger, 9 Tex. 315, 58 Am. Dec. 145; Thouvenin v. Rodriques, 24 Tex. 468; Foster v. Andrews, 4 Tex. Civ. App. 429, 23 S. W. 610. 12 Ency. Plead. & Prac. 179, thus states the rule: "It is an elementary principle, recognized in all the cases, that to give binding effect to a judgment of any court, whether of general or limited jurisdiction, it is essential that the court should have jurisdiction of the person, as well as of the subject-matter, and that a judgment which appears upon the face of the record to have been rendered without jurisdiction of the subject-matter, or of the person, or which may be shown to have been so rendered in cases where evidence upon the question is admissible, is absolutely void, no matter in what proceeding or in what action it may thereafter be set up or relied upon." This rule is supported by numerous citations in the footnotes from Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Mississippi, Missouri, New Hampshire, New York, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, Utah, Vermont, Virginia, Wisconsin, United States Supreme Court, and England, as well as in Texas. Some of the Texas cases have already been cited, supra. There are others, however, in the footnotes, not mentioned in the preceding portion of this opinion. If this rule is correct, and there seems to be absolutely no question of it, then it is necessary that the court have jurisdiction of the person in order to make valid the judgment rendered.

Under the provisions of our law, constitutional and statutory, it is necessary, in order to constitute perjury, that the court have jurisdiction of the person on trial in order to render the testimony of the witnesses given on that trial false, or in fact testimony at all, and without the presence of an accused in a felony case during the introduction of the evidence, the court is without authority to try the case; and, being without authority, its proceedings would be necessarily void. The same rule applies in cases where the court has not acquired jurisdiction of the person under necessary process or pleadings, although in fact, the accused was tried. Wilson v. State, 27 Tex. App. 47, 10 S. W. 749, 11 Am. St. Rep. 180; Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108; Lawrence v. State, 2 Tex. App. 479. This is the rule as well in civil cases. Drew v. Harrison, 12 Tex. 279, and Grounds v. Sloan, 73 Tex. 662, 11 S. W. 898. It would follow, therefore, that false evidence given in a matter which is a void prosecution is not perjury. Criminal Law and Procedure (Criminal Trial Brief) 414, § 1611, and note 37, for collated authorities. This is also the...