Whitaker v. State

• Decision Date: 10 June 1896
• Citation: 36 S.W. 253
• Parties: WHITAKER v. STATE.
• Court: Texas Court of Criminal Appeals

36 S.W. 253

WHITAKER v. STATE.

Court of Criminal Appeals of Texas.

June 10, 1896.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

Richard Whitaker was convicted of perjury, and appeals. Reversed.

Stillwell H. Russell, for appellant. Mann Trice, for the State.

HURT, P. J.

Appellant was convicted of perjury, and given five years in the penitentiary, and appeals. Counsel for appellant is mistaken as to the nature and basis of this prosecution. Perjury is not assigned upon one of two conflicting statements made by the appellant. When this is the case, the pleader should select a statement, assign it for perjury, and prove that it was false. Such proof cannot be made alone by a statement in conflict with that assigned for perjury. This doctrine is well settled. See 2 Bish. Cr. Law, art. 1044. It appears from the record: That two persons were indicted, to wit, John Gilbert and Lewis McDuff, for the theft of certain property alleged to belong to Sam Goldsmith. That the McDuff case was tried first, and appellant was a witness in said case, and testified that, on the night that the theft was committed, John Gilbert had come to him, and asked him to go with him,—that he had something "on ice, down the street"; that he (appellant) refused to go with him; that after awhile John Gilbert came back, and took him and showed him where he had a lot of clothing (pants, coats, and vests) hid under Hamilton Hall; and that said Lewis McDuff had said nothing, except that he had bad luck and had been run. This clothing shown to the appellant by John Gilbert was the fruits of the crime for the theft of which Gilbert and McDuff were indicted. Now, when John Gilbert was upon trial for the same theft, appellant was again a witness, and upon the trial he swore that it was Lewis McDuff who came to him on the night that the theft was committed, and had said to him that he had something on ice down the street; that he (Whitaker) refused to go with him; that after awhile Lewis McDuff came back, and took him and showed him where he had a lot of clothing (pants, coats, and vests) hid under Hamilton Hall. When appellant testified that it was McDuff who had done these things (Gilbert being on trial), counsel for the state called his attention to his testimony in the McDuff case, and asked him if he had not stated in that trial that it was John Gilbert who had done these things. He denied making that statement in the McDuff trial, swearing that he had made the same statement in the McDuff trial that he was then making in the Gilbert trial. Now, perjury was assigned upon the statement that he had made the same statement in the McDuff trial, in regard to this matter, that he then made in the Gilbert trial. The indictment in this case sets up particularly what the statements were, assigning perjury upon the statement that he had never said that it was Gilbert who had taken him and shown him the clothes, etc. The indictment charges the truth to...