Garrett v. State

• Decision Date: 27 January 1965
• Docket Number: No. 37506,37506
• Citation: 387 S.W.2d 53
• Parties: Donald L. GARRETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 53

387 S.W.2d 53

Donald L. GARRETT, Appellant, v. The STATE of Texas, Appellee.

No. 37506.

Court of Criminal Appeals of Texas.

Jan. 27, 1965.

Rehearing Denied March 10, 1965.

Joe S. Moss, Houston, for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally, W. Louis White and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is false swearing; the punishment, two years.

The indictment set out a statement of Donald L. Garrett subscribed and sworn to before William A. Gee, Notary Public of Harris County, Texas on November 10, 1959.

The affidavit related to an accident which occurred on November 6, 1959, in which an automobile in which the affiant was a passenger, stopped for the traffic light at an intersection, was struck from the rear by a truck, the accident resulting in personal injury to the affiant.

The affidavit contained the statement alleged to be false: 'I have never had an injury of any kind before this nor have I ever had a claim before,' and the indictment alleged that in truth and in fact appellant 'had theretofore on or about the 28th day of October, 1959, made a claim for personal injuries allegedly received by him, the said Donald L. Garrett, on the 21st day of October, 1959, when allegedly involved in a collision with a motor vehicle in Denver, Colorado.'

Appellant's first ground for reversal relates to the overruling of his exception and motion to quash the indictment.

The contention is advanced that the allegation of the indictment that appellant swore he never HAD a claim before was not traversed by the allegation that in truth and in fact he had theretofore MADE a claim for personal injuries.

We find no merit in this attack upon the indictment. If appellant in truth and in fact had theretofore asserted a right and made a claim for personal injuries, then his averment that he never had a claim before was necessarily false. This is true whether either claim was valid or not.

The state introduced evidence including the voluntary confession of the appellant from which the jury was warranted in finding that appellant made the affidavit set out in the indictment in connection with a claim for damages he claimed to have received in a staged fake automobile collision and swore: 'I have never had an injury of any kind before this nor have I ever had a claim before,' whereas he had previously staged a similar 'accident' in Colorado and had received money from Liberty Mutual Insurance Co.

In his confession appellant admitted that he had staged the fake accidents and that the statement he made under oath that he had never had a claim before was false and he knew it was false at the time he signed it.

Appellant questions the sufficiency of the evidence to comply with Art. 723, C.C.P. which provides that in trials for perjury or false swearing, no person shall be convicted except upon the testimony of two credible witnesses, 'or of one credible witness corroborated strongly by other evidence as to the falsity of the defendant's statement under oath, or upon his own confession in open court.'

William A. Gee, Insurance Adjuster and Notary Public in and for Harris County, Texas, testified as to the making and signing of the affidavit before him by the appellant. He testified that he questioned appellant closely and he answered several times that he had never had an injury nor a claim before.

The affidavit described in the indictment was identified by Mr. Gee and introduced in evidence.

In addition to appellant's full description of the faked accident in Colorado and his claim for damages, the state called as a witness Jerry L. Slagle, Claims...