Gabrielsky v. State

Willson, J. In an indictment for perjury, if the alleged false — 437 — statement is in writing, it is not required that it should be set out in the indictment in hcec verba. It is sufficient to set out the alleged false matter substantially. (2 Whart. Cr. Law, § 1298; Taylor v. The State, 48 Ala., 157; 2 Bish. Cr. Proc., § 915, and note 8; People v. Warner, 5 Wend., 271; Campbell v. People, 8 Wend., 636; 2 Whart. Prec., 577, note j; Acts 17 Leg., p. 60, sec. 6.) Neither is it necessary to set out in the indictment the whole of what the defendant has sworn. Only that portion of the statement alleged to be false need be recited. (2 Whart. Cr. Law, § 1299; 2 Bish. Cr. Proc., § 916; Campbell v. The People, 8 Wend., 636; State v. Neal, 42 Mo., 119.) It is strongly urged by defendant’s counsel that the indictment in this case is insufficient because it fails to properly assign and point out the perjury complained of, with sufficient particularity; in other words, that the indictment contains no assignment of perjury. As set out substantially in the indictment, the alleged false matter consists of several distinct and independent items or propositions, some of which might be true while the others might be false. These several items or propositions are not so connected as to make the falsity of one the falsity of all. After setting out the alleged false statements, the allegation is that the same were willfully and deliberately made by Louis Gabiielsky, and the same were false, and that the said Louis Gabrielsky well knew the same to be false at the.time he made the same. This is the only assignment of perjury contained in the indictment. It is simply a general averment that the several alleged false statements, as set out in the indictment, are each and all false, without negativing them in detail, and without stating the truth in regard to each. At common law, all the authorities hold this to be insufficient, and we have been unable to find a single precedent, either at common law or in our own State, where the assignment of perjury has been dispensed with. (2 Arch. Cr. Pr. and Pl, 1733; State v. Bishop, 1 Chipman (Ver.), 120; Com. v. Cook, 1 Robinson (Va.), 729; State v. Lea, 3 Ala., 602; Gibson v. The State, 44 Ala., 17; 2 Whart. Prec. of Indict., 577, et seq.; 2 Bishop’s Cr. Proc., secs. 918-919; Burns v. The People, 59 Barb., 531; Whart. Cr. Law, sec. 1300, et seq.) We are aware that the case of The State v. Lindenberg, 13 Texas, 27, is sometimes cited as holding a different doctrine, but we do not so understand that case. It will be observed, upon an examination of the indictment in that case, that it contained the assignment of perjury, expressly negativing the truth of the al — 438 — leged false oath, and pointing out the particulars wherein the same Avas false. It is said by the court in that case: “Of the several causes assigned in support of the motion to quash, there is but one which seems to us at all deserving of notice; that is, that in the assignment of the perjury, instead of simply averring the negative of the oath, the indictment, in this connection, also avers the knowledge of the defendant of the matter specially averred as the converse of the oath. Thus, it is averred that it was a material fact upon the trial that the table was exhibited for gaming; that the defendant falsely swore that it was not so exhibited; and, instead of averring simply the negative of the oath, that in truth it was so exhibited, the averment is that the defendant well knew that the table was exhibited for gaming. Though it was not necessary, in connection with the special aAmrment negating the oath, to aArer also the defendant’s knowledge, which was elsewhere sufficiently charged, the aA^erment in this connection did not impair the force or effect of the special averment of fact, in which it was introduced; and surely it did not vitiate the indictment,” We think the Lindenberg case supports, instead of denies, the proposition that it is necessary to specifically negative the truth of the alleged false statement. We have carefully examined all the perjury cases decided by our Supreme Court, and by this court, and in none of these cases do we find even an intimation that an indictment for this offense which omits the proper assignment of the perjury would be maintained as a good indictment. (State v. Powell, 28 Texas, 626; Jauraqui v. The State, Id., 625; State v. Webb, 41 Texas, 67; Allen v. The State, 42 Texas, 12; State v. Perry, Id., 238; State v. Openheimer, 41 Texas, 82; State v. Peters, 42 Texas, 7; State v. Umdenstock, 43 Texas, 555; Buie v. The State, Id. 533; O'Connell v. The State, 18 Texas, 343; Smith v. The State, 1 Texas Ct. App., 620; Lawrence v. The State, 2 Texas Ct. App., 479: Massie v. The State, 5 Texas Ct. App., 81; Mattingly v. The State, 8 Texas Ct. App., 345; Martinez v. The State, 7 Texas Ct. App., 394; Watson v. The State, 5 Texas Ct. App., 11; Bradberry v. The State, 7 Texas Ct. App., 375; Stewart v. The State, 6 Texas Ct. App., 184; West v. The State, 8 Texas Ct. App., 119; Brown v. The State, 9 Texas Ct. App., 171; St. Clair v. The State, 11 Texas Ct. App., 297.) We think that the assignment of the perjury is an important and essential portion of the in.dictruent, more especially where, as — 439 — in this case, the alleged false matter consists of several distinct and separate propositions. It is a constitutional right of the defendant to be informed by the indictment, in plain and intelligible words, of the nature of the charge against him, and with that degree of reasonable certainty which will enable him to prepare his defense. He should be told in the indictment wherein and to what extent the statements alleged to have been made by him were false, that he may know certainly what he is called upon to answer. We think the indictment in this case, in this respect, is fatally defective, and although it would perhaps be a sufficient indictment under the form prescribed in the act known as the “Common Sense Indictment Act” (Acts Seventeenth Legislature, p. 62, form Ho. 13), we think that form is itself insufficient and invalid, for the reasons stated by this court in Williams v. The State, 12 Texas Ct. App., 395. We might content ourselves with reversing the judgment and dismissing the prosecution because of the insufficiency of the indictment, but conceiving it probable that the defendant may be again indicted and prosecuted for the alleged offense, we deem it proper that we should consider and determine other questions presented by the record, and which are likely to present themselves in any future trial of the defendant, should he be again indicted in respect to the same transaction. In trials for the offense of perjury it is provided by statute that “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 statement under oath, or upon his own confession in open court.” (Code Crim. Proc., Art. 746.) This is but a statutory enunciation of the common law upon the same subject, and it is said that this rule is not merely technical, but is founded on substantial justice. (2 Whart. Cr. Law, sec. 1319; Whart. Cr. Ev., sec. 387; 1 Greenl. Ev., sec. 257; 3 Id., sec. 198.) In the case at bar there is but one witness who testifies to the falsity of the defendant’s statement under oath, if indeed this witness does. It therefore becomes necessary, in order to sustain this conviction, that the evidence of this single witness as to the falsity of the defendant’s statement should be corroborated by other evidence, and not only corroborated, but strongly corroborated. It is contended by the defendant that this has not been done. In answer to this contention, the State relies upon the record of the proceedings in civil suit Ho. 10,382 in the — 440 — District Court of Galveston County, wherein Focke & Wilkins were plaintiffs and L. Gabrielsky was defendant. This was an attachment suit founded upon the three promissory notes in relation to which the perjury is alleged to have been committed. It is argued by the State that the three notes sued upon in said suit, and the conduct of Focke & Wilkins in instituting the suit upon these notes, and in making the affidavit and giving the bond for the writ of attachment, are strongly corroborative of the evidence of the witness Wilkins as to the falsity of the sworn statement of the defendant in regard to these notes. This is the only evidence in the case which is claimed by the State to be corroborative of the evidence of the witness Wilkins as to the falsity of defendant’s statement under oath. Is this evidence corroborative within the meaning of the law? If so, is it strongly corroborative? It must be borne in mind that the statute in terms requires other corroborative evidence. What are we to understand by this? It can only mean that this other evidence must come from some other source than from the witness who is to be corroborated. It was certainly never intended that a witness could corroborate his own testimony, by his own acts and declarations. Such a conclusion would be absurd. In the case before us, the defendant says under oath that the notes sued upon were executed by him without consideration, as accommodation • paper. Wilkins, the State’s witness, testifies to the falsity of this statement, and to corroborate his testimony the State proves that Wilkins brought suit upon the notes, that Wilkins made affidavit in that suit, and gave bond for an attachment, and that Wilkins had never in fact used the notes as accommodation paper. It is Wilkins all the time corroborating Wilkins. It is not other corroborating evidence, but is nothing more than the evidence of the. same witness, viz., his acts and declarations in regard to the subject about which he testified. We think the record of the suit No. 10,382 was properly admitted in evidence for the purpose of showing a judicial proceeding in which the alleged false statement under oath of the defendant was used; but, when it is sought to give to these proceedings the function and dignity of corroborative evidence of the falsity of defendant’s statement, we certainly cannot give our assent to such a proposition. But, conceding that it may be treated as corroborative evidence, it certainly does not come up to the standard required by. law. It certainly cannot be — 441 — termed strong. It proves nothing except that Wilkins did not use the notes as accommodation notes, and that Wilkins undertook to collect the notes by legal proceedings. Is this strong evidence that the defendant’s sworn answer in the suit was false? We are clearly of the opinion that this evidence, even could it be regarded as corroborative, and we think it cannot be so treated, is of that character which cannot be termed strong, and does not fill the measure of the law. (Buie v. The State, 43 Texas, 532.) Article 745 of the Code of Criminal Procedure provides as follows: “In all cases where by law two witnesses, or one with corroborating circumstances, are' required to authorize a conviction, if the requirement be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction.” Under the authority of this provision the defendant’s counsel asked the court to instruct the jury as follows: “ The evidence in this case as to the falsity of the defendant’s statements under oath, as charged in the indictment, consists only of the testimony of one witness, and is not corroborated strongly by other evidence as to the falsity of the statement under oath, and the jury must find the defendant not guilty.” This instruction was refused by the court, and we think this refusal was error. It is made the duty of the court in such cases to first pass upon the competency and sufficiency of the evidence. This is an exception to the general rule that the jury are the exclusive judges of the credibility of the witnesses and the weight of the evidence. In the cases mentioned in Article 745, above quoted, the court is positively required to instruct the jury to acquit, when the requirements of the law as to the quantum of the evidence have not been fulfilled. This responsibility, thrown upon the court, cannot be shifted to the jury. If the trial court errs in its judgment as to the sufficiency of the evidence, as we think it did in this case, then the same question is presented to this court, and, in considering it, we are not bound by the verdict of the jury, because the question is one primarily for the court, and not the jury, to determine. In this connection we will say further, that it was developed in the testimony of the witness Wilkins that his partner, Focke, and Morris, the bookkeeper of the firm of Focke & Wilkins, were both present when the conversation between Wilkins and defendant in regard to the execution of the notes occurred, and yet — 442 — neither of these gentlemen were called upon by the State to corroborate the evidence of Wilkins in relation to that conversation. It is a well-settled rule of evidence that the best evidence attainable must be adduced, and that when it is disclosed that direct evidence of a material fact is. probably in existence, circumstantial evidence of that fact cannot be resorted to without accounting for the absence of the direct evidence, which was not done in this case. (Wilson v. The State, 12 Texas Ct. App., 481, and authorities there cited.) Upon the trial, defendant’s counsel requested the court to give the following instruction, which was refused, to-wit: “If the jury believe from the evidence that the defendant, at the time of the execution of the notes in evidence, was indebted to Focke & Wilkins on open account, and that the notes were executed solely with reference to said open account, and not upon any other consideration, and that it was understood between the defendant and Focke & Wilkins, or by the defendant, that the said open account was not to be in any way affected bjr the execution of said notes, and that said notes were executed by the defendant for the convenience and accommodation of Focke & Wilkins, the verdict must be for the defendant, and you will find him not guilty.” This instruction was, we think, applicable to and demanded by the evidence. It is supported by the evidence of the witness Wilkins in part, if not in toto. In fact, taking the whole of the testimony of the witness Wilkins, it impresses our minds as corroborative, instead of destructive, of the alleged false statements of the defendant. We will not enter upon a discussion of this testimony, but will leave it, with the remark that in our judgment it is insufficient to prove perjury. Other errors than those we have noticed are assigned, and are discussed in the brief and argument of appellant’s counsel, but we do not think it necessary to pass upon them, for the reason that they are not likely to arise in the future trial of this or any similar case. Because of the errors we have mentioned, the judgment is reversed, and, because the indictment is insufficient, the prosecuprosecution is dismissed. Reversed and dismissed. Opinion delivered February 10, 1883.