State v. Webb

• Decision Date: 01 January 1874
• Citation: 41 Tex. 67
• Parties: THE STATE v. ELLIS WEBB.
• Court: Texas Supreme Court

41 Tex. 67

THE STATE

v.ELLIS WEBB.

Supreme Court of Texas.

1874.

APPEAL from Matagorda. Tried below before the Hon. William Burkhart.

The indictment charged that “Ellis Webb, * * * in the county of Matagorda, did willfully, unlawfully, knowingly, corruptly, and feloniously commit willful and corrupt perjury, and that then and there the case of the State of Texas against Leander Hunt, charged with disturbing religious worship at Caney church, came on to be tried in the District Court of Matagorda county, and upon the trial of said cause it became and was a material issue whether or not the said Leander Hunt spoke in a low tone of voice loud enough to be heard by the congregation, and that the said Ellis Webb, having then and there been duly and legally sworn by the district clerk of Matagorda county to give evidence in said case, (said clerk being then and there the officer authorized under the law to administer oaths,) did then and there willfully, knowingly, corruptly, and falsely state under oath that on the occasion referred to in the indictment he was present at Caney church, and distinctly heard the said Leander Hunt say in an audible tone of voice, “God damn you, give me that cup,” when in fact and truth the said Leander Hunt did not say in an audible tone of voice, “God damn you, give me that cup.” Whereupon the grand jurors aforesaid present that the said statement was false, and that the said Ellis Webb then and there knew it to be false, and that the said Ellis Webb did then and there (upon the trial of said case) unlawfully, willfully, knowingly, and feloniously commit willful and corrupt perjury, contrary,” &c. Trial and verdict of guilty. Motion in arrest of judgment sustained, and State appealed.

George Clark, Attorney General, for the State.

Quinan, for appellee, contended that the indictment was bad, because the alleged false statement was not charged to have been deliberately and willfully made, citing Pas. Dig., art. 1909; Juaraqui v. The State, 28 Tex. 625;State v. Powell, 28 Tex., 627; 2 Bishop's Crim. Law, 997.

DEVINE, ASSOCIATE JUSTICE.

The appellee was indicted in the District Court of Matagorda county at the June Term, 1873, charged with having, on the 10th of October, 1872, committed ““willful and corrupt perjury” in “the case of the State of Texas v. Leander Hunt, charged with disturbing religious worship at Caney church,” and that the said Ellis Webb, being then and there duly sworn, &c., * * * did then and there willfully, knowingly, corruptly, and falsely state under oath * * * that he was present at Caney church, and distinctly heard the said Leander Hunt say in an audible tone of voice, “God damn you, give me the cup.”

There was a trial at the February Term, 1874, a verdict of guilty as charged in the indictment, a motion for a new trial, which was overruled, and a motion in arrest of judgment made by defendant. The court sustained the motion in arrest of judgment and dismissed the case. The District Attorney appealed, and has brought the cause for revision to this court.

In sustaining the motion to quash the indictment the court did not err. The indictment, when compared with the statute, is found wanting in a material charge set forth in the Criminal Code in its definition of perjury, which is declared to be “a false statement, either written or verbal, deliberately and willfully made,” &c., &c. (Paschal's Dig., art. 1909.) The indictment omitted to charge the defendant with having deliberately and willfully sworn falsely. It is true, the District Attorney in framing the indictment uses an abundance of expletives, such as “willfully, unlawfully, knowingly, corruptly, and feloniously did commit willful and corrupt perjury,” and that the accused did “willfully, knowingly, corruptly, and falsely state under oath,” and that the accused “did then and there, upon the trial of said case, unlawfully, willfully, knowingly, and feloniously commit willful and corrupt perjury.” But in all the charges quoted the short and simple statement required by the Code is omitted. There is no charge that the false statement was “ deliberately and willfully made.” We are left to inference in ascertaining from the indictment that the accused is charged with the crime of perjury as defined in the Code. If the definition, and material facts comprised in the definition as set forth in the statute, be omitted in any one material circumstance, the jurisdiction will be bad. (1 Arch. Crim. Prac. and Plead., 282, and American notes.) “An indictment which describes the offense as having been done feloniously, unlawfully, and maliciously will not be good where the statute uses the words willfully and maliciously.” (State v. Delue, 1 Wis., 166.)

In the case of the State v. Juaraqui, 28 Tex., 626, this court declared that “the indictment ought to charge that the defendant deliberately and willfully swore falsely,” and that the words falsely, wickedly, willfully, and corruptly, being matters of deduction from previous averments, cannot supply the want of averments essential to the proper and legal description of the offense, and reversed the judgment of conviction. In the case of the State v. Powell, 28 Tex., 627, the omission in the indictment to charge the defendant with having deliberately and willfully made the false statement, was held to be sufficient to sustain a motion in arrest of judgment.

The indictment before us is likewise defective in this, that it fails to state that any indictment had been found against the parties on trial for disturbing the worshippers in “Caney church,” or that the court had cognizance of the offense by reason of its being committed within the limits of Matagorda county, or that it was one over which the court had jurisdiction. This the indictment should have stated, and this it failed to do.

In the case of State of North Carolina v. Gallimore, 2 Ired., 374, 375, the indictment, charging the accused with perjury under a statute similar to ours, set forth with minuteness, and at considerable length, the style of the count, the names of the presiding judges, their authority to administer the oath, the character of the offense charged, and the taking of the oath, and its exact language, and the falsity and materiality of the words uttered. The court, in reviewing the case, declared: “The objection to the indictment is, that it does not distinctly and certainly set forth the facts, which show that the alleged false oath was taken in a judicial proceeding, before a court having jurisdiction thereof. It is a general rule that every indictment should charge explicitly all the facts and circumstances which constitute the crime, so that on the face of the indictment the court can with certainty see that the indictors have proceeded upon sufficient premises.” According to this rule, the court said that the indictment charging perjury should have averred, as a fact, the finding an indictment in the County Court against the defendant in the former case, and should have set forth that...