Manning v. State

• Decision Date: 01 June 1904
• Citation: 81 S.W. 957
• Parties: MANNING v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

81 S.W. 957

MANNING v. STATE.^*

Court of Criminal Appeals of Texas.

June 1, 1904.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

F. J. Manning was convicted of perjury, and he appeals. Affirmed.

Hart & Mahaffey, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

We have carefully examined the record presented in this case, and the questions arising therein, as well as those presented in appellant's brief. The brief submitted by the Assistant Attorney General admirably presents the questions at issue, and we hereby adopt it as the opinion of the court in this case. The judgment is accordingly affirmed.

Brief for the State.

Appellant was convicted of perjury, alleged in the indictment to have been committed by depositions in answer to material interrogatories which had been propounded to him in a judicial proceeding, to wit, in a civil case which was, at the date said perjury is alleged to have been committed, pending in the district court of Kaufman county. Appellant was plaintiff in said civil action, and the Texas Midland Railroad Company was defendant. The nature of said suit was for damages on account of personal injuries alleged to have occurred to appellant by the negligence of said railway company. It appears that after appellant had filed his petition for damages in said cause, and after the railway company had filed its answer denying appellant's cause of action, the attorney for said railway company desired to take the depositions of appellant, for the purpose of using them as evidence on the trial of said cause, and proceeded to propound interrogatories to him; that appellant's attorney of record crossed these interrogatories by propounding questions to appellant. This civil suit was never tried, but was dismissed by appellant after his depositions were taken—the depositions in which it is alleged he made the false answers in question in this prosecution.

Appellant's main insistence on this appeal is that B. T. Cowley, the notary public who took said depositions, was not authorized by law to take them, and therefore they were not taken by authority of the district court of Kaufman county, and hence were not taken in a judicial proceeding. He bases this contention upon the proposition that no commission was issued by the district court of Kaufman county authorizing B. T. Cowley, the notary public, to take the depositions in question. In answer to this contention of appellant, the state replies that, while it is true no commission was issued authorizing the taking of these depositions, appellant (the plaintiff in said case) and the railroad company both waived the issuance thereof, and that said parties to this civil action had the right to waive the issuance of the commission; that the depositions taken by virtue of the agreement were legal depositions, and could have been introduced on the trial of said civil case by either party. Said agreement reads as follows: "We hereby agree to waive notice, time, and issuance of commission, and agree that the answers to the said interrogatories may be taken on the original direct and cross interrogatories before any officer authorized by law to take the same, and in any county and state in which the said T. J. Manning may be found. [Signed] Ed R. Bumpass, Attorney for Plaintiff." Manning was found in Bowie county, the county of this prosecution, and B. T. Cowley, the officer who took said depositions, was a duly qualified notary public of said county. Appellant in his able brief does not cite any authority that sustains his contention on this issue.

The state submits that the parties to said civil proceeding could waive the issuance of a commission, and that the depositions taken would have been admissible in evidence on the trial of said cause. Seymour v. Farrell, 51 Mo. 95; De Lisle v. McGillivary, 24 Mo. App. 680. In Seymour v. Farrell, 51 Mo. 95, the court said: "The dedimus is what gives authority to an officer out of the state to take depositions. If the party expressly waives the dedimus, and depositions are taken on the faith of such waiver, he ought not to be allowed afterwards to urge objection of the want of a dedimus." The court, in the De Lisle v. McGillivary Case, supra, quotes this case with approval, and says, "This is an application of the rule which makes the waiver of a condition equivalent to its performance."

The state submits that, while perjury cannot be assigned upon an oath administered in proceedings wholly void, mere irregularities or informalities not ousting the jurisdiction of the court constitute no defense to a charge of perjury committed at any stage of a judicial proceeding. Smith v. State, 31 Tex. Cr. R. 315, 20 S. W. 707; Cordway v. State, 25 Tex. Cr. App. 405, 8 S. W. 670; Anderson v. State, 24 Tex. Cr. App. 705, 7 S. W. 40; In re Smith, 110 Mich. 435, 68 N. W. 228; Maynard v. People, 135 Ill. 416, 25 N. E. 740.

In the Smith Case, supra, Judge Hurt says: "An oath legally taken in any stage of a judicial proceeding, civil or criminal, in or out of court, or before a grand jury, is included in the description of this offense. Now it is contended, too, that until the jury be legally sworn the oath is not required by law, and is therefore not legally taken; in other words, the objection of appellant is that all of the proceedings must be regular up to the time the oath is taken, in order for the oath to be legally taken. We cannot agree to such a proposition. The effect would be fatal to a great many prosecutions for perjury if the proposition was extended to its legitimate consequences." He says further: "The correct rule seems to be that if the court has jurisdiction of the subject-matter of the suit, and the oath is required by law, irregularities in the proceeding will not prevent perjury." In this connection he quotes with approval from State v. Hall, 7 Blackf. 25, as follows: "Where the false swearing was in the course of a judicial proceeding, we do not think it essential to the commission of the offense of perjury that all the proceedings on the trial should be strictly regular. It is essential, however, that the court have jurisdiction of the subject-matter, and power to administer an oath to the witness."

In the Smith Case, supra, by the Supreme Court of Michigan, Judge Grant wrote as follows: "The petitioner insists that the taking of testimony and the hearing of the case in the county of Kalamazoo were without jurisdiction of the court, and that therefore perjury cannot be assigned. It is too clear to require argument that the valid decree was rendered in that case. All parties understood that the case was still pending in the Van Buren circuit, and stipulated that the testimony should be taken and the arguments had at the residence of the circuit judge in the adjoining county of the same circuit. It would be illogical to hold that the court had jurisdiction to render a valid decree, but that it had no jurisdiction to take the testimony upon which the decree was based. The testimony was taken in a judicial proceeding; the court had jurisdiction of the subject-matter; the parties waived, for their own convenience, the taking of testimony at the county seat, and agreed to take it elsewhere. The waiver binds them. The consequences of false swearing were the same as if taken at the courthouse in Van Buren county, and the moral turpitude of the petitioner is as great in one case as in another. Circuit judges have power to administer oaths. When courts have jurisdiction of the subject-matter of a suit, all irregularities may be waived, and such irregularity will afford no defense to a charge of perjury. A well-considered case is State v. Stephenson, 4 McCord, 165, where a justice of the peace administered an oath to a witness in a matter submitted to arbitration by the consent of parties." After citing several authorities, the court says: "The authorities before cited have collated a great variety of cases calculated to mark the line of separation between that class of oaths which, with respect to the tribunal by which they are administered, do constitute the crime of perjury, and those which do not; and, without entering into a minute analysis of them, all the principle clearly deducible from them is that, whenever the law confers the power of ascertaining facts, and from which any legal consequences are to follow, and in the investigation of which the examination of witnesses is necessary, it is perjury in a witness to testify falsely."

In the Maynard Case the Supreme Court of Illinois says: "We understand the doctrine to be that, although a tribunal must have jurisdiction of the cause or proceeding before perjury can be committed therein, yet that where the defect renders the proceeding voidable only and not absolutely void, and such proceeding is amenable, or where the defect has been waived by the parties, there may be perjury committed. Bishop, Cr. Law (5th Ed.) 1028, and authorities cited in notes. So also one may, if he will, and under some circumstances, waive even a right which the Constitution secures to him. Bishop, Cr. Law, §§ 842, 850; 1 Bishop, Cr. Proc. 112, 118. In the proceeding here involved, plaintiff in error elected to waive the right to quash the process or dismiss the complaint, and to go to a hearing upon the merits, and introduced testimony. If such conduct left the record destitute of an essential part, it perhaps did not estop him from afterwards taking advantage of the defect in it in case of conviction therein; but at the same time it should be considered as a waiver of any right to claim that perjury could not be assigned upon false testimony given by him upon such hearing."

Appellant further contends that the indictment is defective in that it fails to allege the venue; that is, that the depositions were taken in Bowie county. It may be that there is no direct allegation of venue, but it is amply alleged in stating the facts which...