Smith v. State

Citations

• 27 Tex. Ct. App. 50
• 10 S.W. 751
• 1889 Tex. Crim. App. LEXIS 5

Syllabus

<p>1. Perjury—Evidence—Case Approved.—Note the approval of Wilson v. The State, ante, to the effect that without a supporting affidavit an information is not sufficient evidence of jurisdiction alleged in the indictment, and that the omission of the trial court, on trial for perjury, to give in charge to the jury the substance of article 746 of the Code of Criminal Procedure, is fundamental error. But note that the errors in this respect, committed upon the trial of Wilson’s case, were not committed upon the trial of this ease.</p> <p>8. Same—Indictment which conforms to Ho. 122 of Willson’s Criminal Forms is sufficient to charge the offense of perjury.</p> <p>8. Practice—Charge oe the Court.—It is a rule of practice in this State that special instructions, whether given or refused by the trial judge, must be authenticated by his signature, and if .the record fails to show that such instructions were refused, the Appellate Court will presume that they were given.</p> <p>4. Same.—Special instructions are properly refused when it appears that to the extent they were correct they were embodied in the general charge.</p> <p>5. Same.—The materiality of matter assigned as perjury is a question to be determined by the court, and not by the j ury. A special instruction announcing the converse as the rule was properly refused.</p> <p>6. Same—Privilege oe Counsel.—In his concluding argument the counsel for the defense stated to the jury that the State’s counsel, in closing the case, would have something to say about why P. and W. and E. (aÜ of whom were shown to be indicted for the same offense) were not put on the stand by the defense, and that the reason they were not called to the stand was that, if called, the prosecuting officer would indict them again for perjury. In reference to this matter the State’s eounsel, in concluding the argument, stated that all of the parties named, except W., who had been convicted, could have been called to testify without danger of indictm