Ferguson v. State

• Decision Date: 29 April 1896
• Citation: 35 S.W. 369
• Parties: FERGUSON v. STATE.
• Court: Texas Court of Criminal Appeals

35 S.W. 369

FERGUSON v. STATE.

Court of Criminal Appeals of Texas.

April 29, 1896.

Appeal from district court, Tarrant county; S. P. Greene, Judge.

R. E. Ferguson was convicted of perjury, and appeals. Affirmed.

Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of perjury, and given five years in the penitentiary, and prosecutes this appeal. There is no bill of exceptions or assignment of errors in the record. The only question presented in the case for our consideration is as to the charge of the court, which is complained of in the appellant's motion for a new trial. The charge in question, after enumerating the various grounds on which the perjury is alleged in the indictment, proceeds as follows: "Which said statements the state charges were false, and that the same were willfully and deliberately made under oath as aforesaid by said R. E. Ferguson, knowing at the time he made the same that said statements so made as aforesaid were then and there false and untrue. Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, under oath as above set out, and willfully and deliberately, made the alleged statements above set forth, in the county of Tarrant, state of Texas, at or about the time as charged in the indictment, and that said statements so made as aforesaid were and are false, and that the falsity of said statements has been established by the testimony of two credible witnesses, or of one credible witness strongly corroborated by other evidence as to the falsity, then you will find the defendant guilty, and assess his punishment at confinement in the penitentiary for not less than five nor more than ten years."

The contention of the appellant is that the charge is fatally defective because it failed to instruct the jury that the defendant, when he made the statements upon which the perjury was predicated, knew that the same were false. It has been held in this state that an indictment for perjury, to be good, should allege that the defendant knew the statements (on which the perjury is predicated) were false when he made them, and that this must be distinctly averred. This was so held in State v. Powell, 28 Tex. 627, which appears to follow State v. Juaraqui, Id. 625. We have examined that case, and the language there used is as follows: "The indictment ought to charge that the defendant deliberately and willfully swore falsely." This is all that is said upon the subject, and appears, in this regard, to follow our statute explicitly, and is the rule at common law. We do not understand our statute, in defining perjury to depart from the common-law definition on the subject. It says, "Perjury is a false statement, deliberately and willfully made, relating to something past or present, under the sanction of an oath or affirmation, where such oath or affirmation is legally administered, under circumstances in which an oath or affirmation is required by law, or is necessary for the prosecution or defense of any right or for the ends of public justice." See Rev. St. 1895 (Pen. Code, art. 201). This does not require, as a part of the definition of perjury, that the party making the false statement knew that it was false when he made it. At common law the terms used, indicating intent, are "willful and corrupt." See 2 Whart. Cr. Law, art. 1286; 2 Arch. Cr. Prac. & Pl., p. 1725; 2 Bish. New Cr. Law, 1045. It was held that an indictment which charged that the defendant, of his wicked and corrupt mind, did commit willful and corrupt perjury, is defective, even at common law, for not alleging that the defendant willfully and corruptly swore falsely. See State v. Carland, 3 Dev. 114; U. S. v. Babcock, 4 McLean, 114, Fed. Cas. No. 14,488. It seems from all the authorities, that there must be an affirmative allegation to the effect that the defendant willfully and corruptly wore falsely. The fact that a defendant may know at the time he makes a statement that it...