Foster v. State

• Decision Date: 15 April 1893
• Citation: 22 S.W. 21
• Parties: FOSTER v. STATE.
• Court: Texas Court of Criminal Appeals

22 S.W. 21

FOSTER v. STATE.

Court of Criminal Appeals of Texas.

April 15, 1893.

Appeal from district court, De Witt county; James C. Wilson, Judge.

Rean Foster was convicted of perjury, and appeals. Affirmed.

Baker & Sumners, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

1. This appeal is prosecuted from a conviction of perjury alleged to have been committed before the grand jury during its investigation of a difficulty involving an assault with intent to murder by one Frank Lorre upon one Canfield and others. On the day subsequent to the shooting, and during his investigation of the difficulty, the justice of the peace caused the defendant to be brought before him, and examined her as a witness in relation to said difficulty. This officer testified during the trial of the defendant in this case that her bearing, conduct, action, and language were very insolent while testifying before him, and that he had occasion to rebuke her for such conduct. It is insisted that this evidence was introduced for the purpose only of showing the willfulness and deliberation on the part of defendant when testifying before the grand jury, and was therefore extraneous matter, and should have been restricted to that particular phase of the case by the charge of the court. Deliberation and willfulness are not extraneous matters, in perjury cases, but essential elements of the offense, and without which it cannot be committed. Evidence which proves, or tends to prove, such issues goes to the very substance of the crime of perjury. It is only when the extraneous matter is admitted in evidence for a specific collateral purpose that the court is required to limit and restrict the testimony to such specific purpose. The rule invoked by defendant does not obtain when the admitted testimony proves, or tends to prove, the main fact.

2. The defendant's requested instruction that "the jury must believe from the evidence that the grand jury were legally impaneled, charged, and sworn, before they could convict the defendant," was refused. This charge, it is stated, is based upon the failure of the prosecution to show by the minutes of the court that the grand jury were impaneled. That fact is sufficiently shown otherwise, and, while it is proper to prove such fact by the minutes of the court, yet its omission will not constitute cause for acquittal, if it is shown otherwise without objection. The court did not err in refusing the requested...