Murff v. State

• Decision Date: 25 November 1914
• Docket Number: (No. 3271.)
• Citation: 172 S.W. 238
• Parties: MURFF v. STATE.
• Court: Texas Court of Criminal Appeals

172 S.W. 238

MURFF v. STATE.

(No. 3271.)

Court of Criminal Appeals of Texas.

November 25, 1914.

On Motion for Rehearing, December 23, 1914.

Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.

Luther A. Murff was convicted of perjury, and he appeals. Reversed on rehearing and remanded.

Jed. C. Adams, of Dallas, and E. T. Branch and E. R. Campbell, both of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of perjury, and the lowest penalty assessed against him.

The indictment herein was filed January 17, 1914. It charged perjury in two counts. The first was not submitted. He was tried alone under the second. It charged the perjury to have been committed on May 30, 1913, in a trial wherein he was a witness in his own behalf, in which he was charged with rape on Viola Johnson, alleged to have been committed on or about January 19, 1913. This count is quite lengthy — more than five typewritten pages. It is unnecessary to copy it. The allegations thereof are fully in accordance with the statute, the standards forms therefor under the statutes, and the many decisions of this court. Appellant made a motion to quash the second count on these grounds:

First. Because it —

"fails to allege the result of the prosecution against the defendant in the original capital case in which said witness was alleged to have been a witness and to have testified falsely, for that, if his said testimony had been injurious to the defendant, and said defendant had had assessed against him the punishment of death, then and in that event the punishment in this case would have been death, and defendant in this case would be entitled to a special venire from which to select a jury to try him."

The mere statement of this ground of the motion shows that it is not well taken. The statute (article 311, P. C.) is:

"When the perjury is committed on a trial of a capital felony, and the person guilty of such perjury has, on the trial of such felony, sworn falsely to a material fact tending to produce a conviction; and the person so accused of the capital felony is convicted and suffers the penalty of death, the punishment of the perjury so committed shall be death."

In every other event the punishment for perjury is imprisonment in the penitentiary for not less than two nor more than ten years. Article 310.

Of course, appellant had not suffered death. In no other case is it necessary to allege the result of the trial of a case in which the perjury is committed, as it is wholly immaterial whether that trial results in conviction or acquittal. It could have no effect on the perjury committed on the trial thereof.

Second. That the indictment had been so changed, blotted, smeared, and interlined since its original draft that it is unintelligible, and therefore should be quashed.

Not one of these things appear in the copy in the record. There is no bill in any way presenting the matter, and, of course, this court cannot assume that the motion states the facts. On the contrary, we must, and do, assume that the lower court acted correctly in not quashing the indictment on this ground.

Third. Because the indictment alleges that the oath administered to him in the trial of the rape case was by the deputy clerk of that court, and, he claims, there is no such officer known to the law who is authorized to administer an oath in any proceeding, judicial or otherwise.

The statutes, both civil and criminal, are the reverse of this ground of appellant's motion. It is perfectly useless to cite them.

Fourth. That the indictment does not allege specifically at what term of the court the rape case was tried. This was wholly unnecessary.

The indictment does allege the specific date on which the case was tried and the perjury was committed, and that it was during the term of the court in which the rape case was tried.

Fifth. That the indictment charges no offense, because in the charging part it undertakes to set out that he was charged by indictment with the offense of rape alleged to have been committed about January 19, 1913, and the statements attributed to and charged against him as the basis of perjury are confusing, in that they charge statements alleged to have been made by him in regard to transactions occurring about February 13, 1913.

This presents no defect at all; for, while the indictment in the rape case alleged that the rape was committed on or about January 19, 1913, clearly on the trial thereof evidence could be properly admitted that the offense was committed on that day or on February 13, 1913, or, as for that matter, on both days. And his false testimony could have been given, as it is alleged it was as to things which occurred and did not occur on both of those days. In offenses of that character the proof is never limited to the particular day on which the offense is alleged to have been committed. Any time prior to that within the statute of limitation and any time after that, before the filing of the indictment, may be proven.

Sixth. That the indictment fails to allege affirmatively that each of the statements made by or attributed to him was material to the cause then upon trial.

In this appellant is unquestionably mistaken. The indictment specifically is to the reverse of what he claims in this ground of his motion. The court correctly held that the indictment was good against each and all of appellant's said grounds to quash it.

He also complains that the court erred in sustaining the state's demurrer to his plea of jeopardy and res adjudicata. In this plea appellant alleges that the state ought not to further prosecute him in this cause, because on February 22, 1913, in criminal district court No. 2 of Dallas county there was duly and legally presented and filed therein a valid indictment against him, charging him with the offense of rape, alleging therein that on January 19, 1913, he did ravish and have carnal knowledge of Viola Johnson, a female under 15 years of age, not being his wife. To this plea he attached a properly certified copy of said indictment so averring. His plea further alleged that he was duly and legally tried upon the merits in said court by a jury on said indictment on May 31, 1913, and was then duly and legally acquitted of that offense. He also attached a duly certified copy of the judgment of acquittal. From the plea there is no question but that the appellant was the accused in said rape case; that the indictment was a valid one; that he had a due and legal trial of the case on its merits and was legally acquitted in that case. The state filed a general demurrer to said plea, and asked that the plea be stricken out and held for naught, as it was insufficient in law and presented no defense to the indictment in this cause. The court sustained the state's demurrer, and held, in effect, that the plea presented no valid defense in this case, and overruled said plea.

The indictment in this case was not based on any allegation therein that appellant was guilty of the rape for which he had been so indicted and tried, nor does it allege that he was guilty of said rape, nor that he swore on said rape trial that he was not guilty of said rape, nor that he had not committed it. It makes no allegation on that subject; nor did the court submit any such issue to the jury. It is true the indictment did allege that the perjury committed by appellant was committed on the trial of the case against him for rape. The indictment herein based the perjury on each and all of the following alleged false statements made by appellant on the trial of his rape case, to wit:

"I was not in the Wilson Building on Main street, in the city and county of Dallas, Tex., on Sunday January 19, A. D. 1913.

"I did not go into my office at any time during the day of January 19, 1913.

"I did not have Viola Johnson in my office on the 19th day of January, 1913, at any time during that day.

"I did not touch her or put my hands upon Viola Johnson in said Dallas county, in the Wilson Building, on the 13th day of February, 1913.

"I did not, on the 13th day of February, 1913, in the Wilson Building, in the city and county of Dallas, lay Viola Johnson down on a coat and attempt to get down on her and unfasten some of her clothing and attempt to have carnal knowledge of her.

"I never had intercourse with the girl, Viola Johnson, in Dallas county, Tex., on January 19, 1913.

"I did not have carnal intercourse with Viola Johnson in Dallas county, Tex., on the 13th day of February, 1913.

"I did not put the said Viola Johnson down on a coat and try to have intercourse with her, and hurt her until she was about to cry, because she was so small.

"I did not try to have carnal intercourse with Viola Johnson, and did not go into another room and deposit semen in a cuspidor."

The court submitted only those statements to the jury for a finding, as the basis of perjury.

The indictment alleged specifically that appellant swore and made each and all of the said specific statements on his trial in the rape case, and also properly alleged that:

"Said statements and each of them and every part thereof so made by the said Luther A. Murff were then and there in said court on the said trial material to the issue in said cause" — said rape case.

The substance and effect of appellant's contention on this question is that, as appellant was tried and acquitted of rape, he could not thereafter be tried for perjury committed by him on that trial; for any subsequent trial for perjury would be putting him in jeopardy again for the same offense, and any subsequent indictment and trial for perjury committed on the trial of the rape case would be res adjudicata, in that he was acquitted of rape in the trial therefor.

Our Constitution (article 1, § 14) says:

"No person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put...