Smith v. State

• Decision Date: 10 November 1886
• Citation: 2 S.W. 542
• Court: Texas Court of Appeals
• Parties: SMITH <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>

2 S.W. 542

SMITHv.

STATE.¹

Court of Appeals of Texas.

November 10, 1886.

Appeal from district court, Williamson county.

The conviction in this case was for perjury, and the penalty awarded was a term of five years in the penitentiary. The perjury assigned in the indictment was, in substance, that, on the trial of one Green Thomas for the theft of a hog, the defendant falsely testified that he was at the house of the said Thomas on the night of the alleged theft, and that the said Thomas was at his home on and during that night, and did not leave it; and that the said Thomas did not have a hog at or about his house on that night; and that he, defendant, (then witness,) did not assist the said Thomas, or other person, to clean or dress a hog on that night. Several witnesses testified, for the state, that they were present, and heard the testimony of the defendant upon the trial of Green Thomas for the theft of a hog, and that he testified substantially to the facts assigned in the indictment as perjury. George Thompson testified, for the state, that he lived at Green Thomas' house at the time of the alleged theft of the hog, for which Thomas was prosecuted, and with regard to which transaction the defendant gave his testimony upon which this prosecution is based. The witness declared that he was at Thomas' house when the defendant arrived, on the night of the alleged theft; that after defendant's arrival the witness and Thomas went to the woods, and brought to Thomas' house the carcass of the identical hog Thomas was afterwards charged with stealing; that defendant was at Thomas' house when the carcass was brought there, and aided the witness and Thomas to cut up and dress the carcass, and reduce the same to pork. To this extent the witness was corroborated by his wife, Phinis Thompson. The witness (George Thompson) denied that, a few days after the trial of Thomas, he told one Berry that, had he known the defendant would testify on Thomas' trial as he did, he (Thompson) would have supported his testimony, and secured Thomas' acquittal. Contradicting Thompson, Berry, from the witness stand, affirmed that Thompson did state to him, a few days after Thomas' trial, that he would have supported defendant's testimony on that trial had he known that defendant would testify as he did. Several witnesses for the defense denounced George Thompson's reputation for truth and veracity as odious, and supported that of the defendant as beyond reproach. Thompson's reputation was supported by two witnesses for the state.

Makemson & Price and Fisher & Townes, for appellant.

The trial court had neither the right nor the judicial power to discharge the jury on the former trial, before the adjournment of the term, without the consent of the defendant. Powell v. State, 17 Tex. App. 346. If the trial court possessed the power, it abused its discretion in this case, the jury having been out but two days. Brink v. State, 18 Tex. App. 344; Blandford's Case, 10 Tex. App. 627. It was error to refuse the special charges requested by the defendant. Proff. Jury, 361, 362 Asst. Atty. Gen. Burts. for the State.

WHITE, P. J.

Appellant's plea of former jeopardy was properly overruled and stricken out; it appearing from the face of said plea that the jury on the former trial, which had been discharged over objection by the defendant, were not discharged until after they had been out considering of their verdict in the case for two days, and that then they were discharged because it appeared that they had been kept together for such a time as to render it altogether improbable that they could agree. In discharging them, under the circumstances, the...