Graham v. State, 20684.
| Decision Date | 17 April 1940 |
| Docket Number | No. 20684.,20684. |
| Citation | 139 S.W.2d 269 |
| Parties | GRAHAM v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Hardeman County; C. Y. Welch, Judge.
J. H. Graham was convicted of perjury, and he appeals.
Reversed and dismissal ordered.
C. C. McDonald and Geo. W. Anderson, both of Wichita Falls, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is perjury. The punishment assessed is confinement in the state penitentiary for a term of two years.
Appellant's first complaint is that the court erred in overruling his motion to quash the indictment, the validity of which is attacked upon various grounds set forth in the motion. The indictment, which is quite lengthy, sets out in haec verba an alleged voluntary confession purporting to have been made by appellant to the district attorney concerning theft of cattle, for which offense he was then under arrest. It is averred, in substance, in said indictment that the confession was tendered in evidence on the trial of appellant for the theft of such cattle. That on the trial of said case, appellant denied that the confession was voluntary; and affirmed that it was extorted from him as a result of cruel and inhumane treatment by the officers, the nature of which need not be stated here. It is then averred that his testimony relative to his treatment by the officers was false. The alleged confession shows upon its face that it was not in due and legal form, because the proper warning was not given to him. See Art. 727, C.C. P.; Adams v. State, 48 Tex.Cr.R. 90, 86 S.W. 334, 122 Am.St.Rep. 733. It is obvious that if the alleged confession was merely tendered in evidence and not introduced, his testimony relative to the treatment he suffered at the hands of the officers was not a material inquiry and not pertinent to any issue in the case.
It is a well-recognized rule in this state that an indictment to be sufficient must by direct and positive averments charge every constituent element of the offense and leave nothing to inference or intendment. See Middleton v. State, 114 Tex.Cr.R. 263, 25 S.W.2d 614; Anderson v. State, 130 Tex.Cr.R. 352, 94 S.W.2d 749; Punchard v. State, 122 Tex.Cr.R. 134, 54 S.W.2d 110; Johnston v. State, Tex.Cr. App., 76 S.W.2d 1052. Many other cases might be cited to the same effect.
Testing the indictment by the rule stated, we think that it fails to meet these requirements; inasmuch as the purported confession shows upon its face that...
To continue reading
Request your trial
-
Green v. State
...defective. Johnson v. State, 149 Tex.Cr.R. 245, 193 S.W.2d 528; Odle v. State, 139 Tex.Cr.R. 288, 139 S.W.2d 595; Graham v. State, 139 Tex.Cr.R. 98, 139 S.W.2d 269. The cases were all decided prior to the cases cited above in the text. Insofar as they conflict with this decision, they are o......
-
Bermudez v. State
...American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598; Pannell v. State, Tex.Cr.App., 384 S.W.2d 350; Graham v. State, 139 Tex.Cr.R. 98, 139 S.W.2d 269; Bush v. State, 97 Tex.Cr.R. 219, 260 S.W. 574. 'Element of offense' is defined in V.T.C.A., Penal Code, Sec. 1.07(a)(13) a......
-
Reeves v. State
...State, 7 Tex.App. 42; Brown v. State, 26 Tex. App. 540, 10 S.W. 112; Jones v. State, 118 Tex.Cr.R. 106, 38 S.W.2d 587; Graham v. State, 139 Tex.Cr.R. 98, 139 S.W.2d 269. Being of the opinion that the complaint and information are insufficient to charge an offense against the laws of the sta......
-
Anderson v. State
...See, e. g., Johnson v. State, 149 Tex.Cr.R. 245, 193 S.W.2d 528; Odle v. State, 139 Tex.Cr.R. 288, 139 S.W.2d 595; Graham v. State, 139 Tex.Cr.R. 98, 139 S.W.2d 269. These cases have been overruled insofar as they may have supported appellant's contention. See Green v. State, 578 S.W.2d 411......