Wilson v. State

• Decision Date: 16 January 1889
• Citation: 10 S.W. 749
• Parties: WILSON <I>v.</I> STATE.
• Court: Texas Court of Appeals

10 S.W. 749

WILSON

v.STATE.

Court of Appeals of Texas.

January 16, 1889.

Appeal from district court, Fayette county; H. TEICHMUELLER, Judge.

Albert Wilson, convicted of perjury committed on the trial of William Bean for carrying a pistol, appeals.

W. H. Ledbetter, for appellant.Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

In all cases of prosecution for perjury committed in a judicial proceeding it must be made to appear, by the allegations of the indictment, that the court had jurisdiction of the judicial proceedings, (Willson, Crim. St. § 307,) and it is equally as important and necessary that the evidence should sustain the allegation in order to warrant a conviction.It was alleged in the indictment in this case that the judicial proceeding was a trial in the county court, "wherein one Bean was duly and legally charged by information" with unlawfully carrying a pistol on or about his person, etc.To sustain this allegation, the prosecution simply introduced in evidence the information.This was not sufficient.An information cannot be presented until oath has been made by some credible person, charging the defendant with an offense.Code Crim. Proc. art. 431.This oath is called a "complaint."It is the basis and foundation upon which the information rests, and is a necessary part, and must be filed with the information.Id.art. 36.Without a complaint, an information would be wholly invalid, and would confer no jurisdiction upon the court, and would be worthless for any purpose.Willson, Crim. St.§ 1999.It follows, then, that, in order to sustain an allegation of a judicial proceeding by information, not only must such information be introduced in evidence, but the complaint upon which it is based or founded must be also introduced.

Another fundamental error appears upon this record.It is a fatal omission in the charge of the court to the jury.An express provision of our statute, with regard to perjury and false swearing, is that, "in trials for perjury, no person shall be convicted except upon the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence, as to the falsity of the defendant's statements under oath, or upon his own confession in open court."Code Crim. Proc. art. 746, Hernandez v. State, 18 Tex. App. 134;Anderson's Case,24 Tex. App. 706, 7 S. W. Rep. 40;Maine's Case,9 S. W. Rep. 51.Article 746, as thus quoted, is as much a part of the law of perjury as is...