Maroney v. State

• Decision Date: 24 June 1903
• Parties: MARONEY v. STATE.
• Court: Texas Court of Criminal Appeals

78 S.W. 696

MARONEY v. STATE.

Court of Criminal Appeals of Texas.

June 24, 1903.

Appeal from District Court, Comanche County; N. R. Lindsey, Judge.

J. T. Maroney was convicted of perjury, and he appeals. Affirmed.

Joiner & McMillan, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of perjury, and his punishment assessed at confinement in the penitentiary for a term of two years.

Appellant insists that the judge who tried this case had no legal authority to do so. The bill shows the following facts: "That N. R. Lindsey was duly elected judge of the Forty-Second Judicial District of Texas, which district at the time of his said election and up to the time of the creation of the Fifty-Second Judicial District was composed of the counties of Comanche, Eastland, Shackelford, Jones, Callahan, Stephens, and Taylor; and that was the district of which N. R. Lindsey was elected district judge. Thereafter the Twenty-Eighth Legislature, at its regular session, created an additional judicial district in the state of Texas, to wit, the Fifty-Second Judicial District, composed of the counties of Coryell, Hamilton, and Comanche. That no district judge has been elected by the people of these counties in said district, and no election has been held therefor, and no appointment has been made by the Governor of the state; the said N. R. Lindsey, the present judge, acting alone by reason of the fact that said Legislature enacted that he should continue and be the judge of the Fifty-Second Judicial District of Texas. Said judge has not taken the oath of office since his appointment as judge of the Fifty-Second Judicial District." We do not understand the Legislature to have attempted anything except to change the district for which the said N. R. Lindsey was elected. Nor did they attempt to appoint said Lindsey judge. The mere fact that they changed the district and changed the name or the number of the district would not in any sense affect his title to the office or his duties as district judge. We understand the law and Constitution of this state to authorize the Legislature to change the district, as was done in this case. Without going into a further discussion of the matter, we hold that the Honorable N. R. Lindsey was judge of the district court that tried this case.

Appellant complains of the introduction of certain evidence on the trial, and his objections are embodied in several bills of exceptions. But under the qualification of the court appended to each bill we hold there was no error in the ruling of the court.

The only remaining question is as to the sufficiency of the evidence. Appellant insists that in a case of perjury he cannot be convicted upon circumstantial evidence. To this we cannot agree. Since the decision in Maines v. State, 26 Tex. App. 14, 9 S. W. 51, this court has held that a conviction could be had upon circumstantial evidence in this character of prosecution. See, also, Anderson v. State, 24 Tex. App. 705, 7 S. W. 40; Beach v. State, 32 Tex. Cr. R. 240, 22 S. W. 976; Plummer v. State, 35 Tex. Cr. R. 202, 33 S. W. 228; Rogers v. State, 35 Tex. Cr. R. 221, 32 S. W. 1044. The indictment is sufficient. The evidence amply warrants the verdict of the jury.

The judgment is affirmed.

Opinion on Rehearing.

(Feb. 17, 1904.)

HENDERSON, J.

This case was affirmed at the last Austin term, and now comes before us on motion for rehearing. Appellant strenuously insists that this case should be reversed because the issue on which perjury was predicated was not shown to be material. He alleges that we failed to pass on this issue in the original opinion, though it was raised, and he now invokes the decision of this court upon that question. It appears from the allegations in the indictment that the alleged perjury was committed by appellant in the trial of a suit in the district court of Comanche county, in which Casey-Swasey Company was plaintiff against the Manchester Fire Insurance Company, the same being brought on an insurance policy for $1,000, issued by said insurance company to one West on a certain stock of goods, furniture, and fixtures, and by West transferred to appellant, J. T. Maroney, and by him transferred to Casey-Swasey Company. It is further alleged that on the trial of the case, appellant, J. T. Maroney, testified as a witness that the transfer of said policy from West to him was made for a valuable consideration; that said West owed him a bona fide debt of principal and interest amounting to $1,000. We do not state the allegations in the indictment accurately, but this was the effect thereof. It was averred that this testimony was upon a material issue in the trial of said case, inasmuch as the transfer from West to Maroney was without consideration, and was made for the purpose of hindering, delaying, or defrauding the creditors of said West. It may be conceded that the allegations in the indictment showing the materiality of the issue upon which the allegation of perjury is based are sufficient; but this materiality must be responded to by the evidence—that is, the evidence adduced on the trial must show the materiality of the alleged false testimony to some issue in the case. We have carefully examined the record on this point. The pleadings—that is, the answer of defendant—state in general terms that West was indebted in large amounts to divers parties, and was not indebted to Maroney, but transferred the policy of insurance to said Maroney in order to defraud his creditors, etc., when in truth and in fact the said West owed the said Maroney nothing whatever for borrowed money; and that the effect of the transfer would be to mislead and deceive appellant as to the real beneficial owner of the proceeds of said policy, and would cause, and might probably cause, embarrassment and difficulty to defendant as to the proper party to make settlement with, and might embarrass defendant in litigation with reference to who was in fact and in law the beneficial owner of the proceeds of said policy. It is further shown in said pleading that the fire that caused the destruction of the insured property was originated and caused by the consent and knowledge and procurement of the said insured, etc. Portions of the policy were also introduced. We copy one of the clauses, as follows: "This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject-matter thereof, or if the interests of the insured in the property be not correctly stated herein, and in any case of fraud or false swearing by the insured touching any matter relating to this insurance or the subject-matter thereof, whether the same be before or after a loss." Portions of the supplemental petition of the plaintiff were also introduced. The first count was a general demurrer to defendant's answer, the second count a general denial, and the third count a plea that defendant had waived all rights as pleaded by defendant as warranties and set out, etc. The judgment in that case showed that defendant recovered—that is, he defeated plaintiff in the suit—which presumably was on the ground that West had fraudulently caused the fire. We would observe in this connection that no creditor of West is named in the proceedings, nor was there any intervention by any creditor whatever; nor is it disclosed or suggested in the record that defendant Manchester Fire Insurance Company in said civil suit would not have had the same defense, as far as it was concerned, against the suit of any transferee or holder of said policy, which it would have had against the insured, West. The facts further fail to disclose, so far as we are able to discover, any debts at the time of the transfer by West to Maroney due by the said West to other parties. It may be conceded that the testimony abundantly shows that appellant, Maroney, swore falsely as to the payment by him to West of a valuable consideration for the transfer to him of said policy by West, but under all the authorities, as we understand them, the materiality of the false testimony must be averred in the indictment. This may be done in general terms; but its materiality must be proved by the evidence in the perjury trial. White's Ann. Pen. Code, §§ 328, 329. This may be done by introducing all the pleadings, or so much thereof as sufficiently shows the materiality of the issue joined, or enough of the pleadings, together with the facts proved on the former trial, as would tend to show that the alleged false testimony was upon a material issue in the trial. Bishop's Cr. Proc. vol. 2, § 935. This was not done. So far as we are advised, it was absolutely immaterial in said civil suit between Casey-Swasey Company and the Manchester Fire Insurance Company whether the transfer of said...