Hunter v. State

• Decision Date: 07 February 1923
• Docket Number: (No. 7312.)
• Citation: 254 S.W. 993
• Parties: HUNTER v. STATE.
• Court: Texas Court of Criminal Appeals

254 S.W. 993

HUNTER v. STATE.

(No. 7312.)

Court of Criminal Appeals of Texas.

February 7, 1923.

Rehearing Denied October 17, 1923.

Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.

Jim Hunter was convicted of perjury, and appeals. Affirmed.

J. F. Taulbee, of Georgetown, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted, in the criminal district court of Williamson county, of perjury, and his punishment fixed at two years in the penitentiary.

This conviction rested upon the alleged falsity of testimony given by appellant in a rape case, wherein one Ewell Simpson was defendant, and in which an attempt was made to show that the injured female was not of chaste character at the time of the alleged rape. Appellant was a defense witness in that case, and testified that he saw Louise Cluck, the girl upon whom the assault was charged, and one Victor Cluck engaged in sexual intercourse in a toilet at Cedar Park schoolhouse in said county on a date prior to that of the alleged rape.

The trial of Simpson was had in January, 1922. In alleging the date of said trial and of the commission of the perjury herein in the instant indictment, the date of the Simpson trial was fixed as of January, 1921. Various complaints are made and based on the apparent variance between the date of the Simpson trial, as alleged in the indictment, and its date as shown by the proof. We are referred to no authority by appellant, and know of none, holding a different rule here applicable from the general rule that the state is not bound by the date of the offense as alleged, and that, if it be one anterior to the return of the indictment and within the period of limitation, it is sufficient. Lucas v. State, 27 Tex. App. 323, 11 S. W. 443; Branch's Ann. P. C. § 439, for authorities. That the trial of Simpson referred to in the indictment, and such trial as shown in the proof were identical, was abundantly established

The false testimony of appellant set out in the instant indictment was composed of more than one fact, but each formed part of, and all related to, the proposition that he had seen the parties above named, at the time and place referred to, engaged in said act of intercourse. Appellant contends that the statement of said false testimony, set out in said indictment, charges twelve separate and distinct perjuries. The statements attributed to appellant in the indictment were made therein the basis of one charge of perjury, and the said statements were set out in the charge to the jury and submitted to them as that whose falsity must be shown by the state in order to support a conviction. We think appellant could interpose his plea of former conviction, should there be any attempt at any time in the future to charge him with perjury based on the alleged making of all, or any one, of the parts of said statement so charged; this being true, and the state seeming to have assumed the burden of proving the falsity of all of said statements, we see no ground for complaint. Nothing in the record suggests that any defensive theory was or could have been, based on the proposition that part of said statement was true and another part false. Beach v. State, 32 Tex. Cr. R. 253, 22 S. W. 976; Adellberger v. State (Tex. Cr. App.) 39 S. W. 103; Moore v. State, 32 Tex. Cr. R. 405, 24 S. W. 95; Simpson v. State, 46 Tex. Cr. R. 77, 79 S. W. 530.

The admission in evidence of the judgment of conviction in the Simpson Case was not error. Davidson v. State, 22 Tex. App. 373, 3 S. W. 662; Washington v. State, 23 Tex. App. 336, 5 S. W. 119; Littlefield v. State, 24 Tex. App. 167, 5...