
    HART v. STATE.
    (No. 3010.)
    (Court of Criminal Appeals of Texas.
    March 4, 1914.
    On Motion for Rehearing, April 22, 1914.)
    1. Perjury (§ 26) — Indictment.
    While the truth of the alleged false statement must be negatived in an indictment for perjury, no particular language is required; it being sufficient if the language used in the indictment specifically negatives the truth of the false statement.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 90-94; Dec. Dig. § 26.]
    2. Perjury (§ 26) — Indictment.
    The indictment for perjury, committed in a prosecution for theft, alleged that accused did falsely testify that W. was in a certain house from 9 o’clock to 11 o’clock on the night of the theft, and never left the house during that time, which statement was material to the issue, whereas, in truth and in fact, the said W. was, between 9 and 11 o’clock p. m. on that day, on or near the corner and intersection of East Fifth street and R. street, and did then and there commit the theft, and further alleged that the statement by accused that W. was in such house from 9 to 11 o’clock on the night of the theft “was false and untrue.” Held, that the indictment sufficiently negatived the truth of the alleged false statement by accused.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 90-94; Dec. Dig. § 26.]
    3. Perjury (§ 29) — Proof.
    In a prosecution for perjury for falsely stating that W. was in a certain house between the hours of 9 and 11 on a certain night, when in truth W. was at that time on a certain street comer and then and there committed the theft, it was not necessary to prove that accused was at the place of the theft, or that W. committed the theft.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 97-106; Dec. Dig. § 29.]
    4. Perjury (§ 33) — Prosecution—Sufficiency of Evidence — Falsity of Testimony.
    In a prosecution for committing perjury in a theft case by testifying that the alleged thief was in a certain house at a certain time, when the thief was in fact on a certain street corner where the theft was committed, evidence held to sustain a finding that accused’s testimony was false.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. § 33.]
    5. Criminal Daw (§ 825) — Instructions — Credibility — “Credible Witness.’’
    An instruction that a credible, witness was one who, being competent to give testimony, is worthy of belief was sufficient, in the absence of a requested charge further defining the words “credible witness.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.;
    For other definitions, see Words and Phrases, vol. 2, pp. 1710, 1711.]
    On Motion for Rehearing.
    6. Perjury (§ 33) — Proof—Circumstances.
    Perjury may be proved by circumstantial evidence..
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. § 33.]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Lewis Hart was convicted of perjury, and appeals.
    Affirmed.
    R. E. Masterson, of Beaumont, and Henry Faulk and John E. Rylee, both of Austin, for appellant. G. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of perjury, and has appealed to this court.

The main attack is made on the sufficiency of the indictment, and we copy herein that portion to which the exception relates: “ * * * At and upon the trial of the said issue so joined between the parties as aforesaid, it then and there became and was a material question whether said Matilda Williams was on and near the corner and intersection of East Fifth street and Red River street in Austin, Travis county, Tex., on the 8th day of August, A. D. 1913, between 9* and ll o’clock p. m., and did then and there commit theft from the person of one D. A. Patterson, and the said Lewis Hart, being so sworn as aforesaid, then and there, on the trial of said issue, upon oath as aforesaid, did falsely, willfully, and deliberately, before-the said Hon. G. W. Mendell, judge as aforesaid, depose and state and testify, among, other things, in substance and to the effect following: That saidi Matilda Williams was-in Emily Hodge’s house from 9 o’clock to 11 o’clock on the night of August 8, A. D. 1913, and never left said house during said time, which said statement so made by the said-Lewis Hart was then and there material to-the issue in said cause, whereas, in truth and:, in fact, the said Matilda Williams was, between 9 and 11 o’clock p. m. on the 8th day of August, A. D. 1913, on and near the corner- and intersection of East Fifth street and Red-River street in Austin, Travis county, Tex., and did then and there commit the offense-of theft from the person of one D. A. Patterson, and the said statement by the said' Lewis Hart that said Matilda Williams was-in the house of Emily Hodge from 9 o’clock to 11 o’clock on the night of August 8,. A. D. 1913, as hereinbefore stated, was false and untrue, and which said statement so-made by the said Lewis Hart as a witness in said case in the manner and form as aforesaid was deliberately and willfully made, and was deliberately and willfully false, as he, the said Lewis Hart then and there well knew, against the peace and dignity of the state.”

The first criticism is that the alleged-false statement must be negatived, and appellant cites a number of cases so holding, and it may be said that is the rule that has-been adopted and followed in this court. Gabrielsky v. State, 13 Tex. App. 428; Turner v. State, 30 Tex. App. 691, 18 S. W. 792. These cases, in announcing the rule that the alleged false statement must be specifically negatived, have been followed; but in no case has any particular form of negation nor specific words been adopted. It is sufficient if the language used in the indictment does specifically negative the truth of the false statement. State v. Lindenburg, 13 Tex. 28. And in the case of Chavarria v. State, 63 S. W. 313, an indictment almost in terms of this one is sustained, pointing out that in the case of Ferguson v. State, 36 Tex. Cr. R. 60, 35 S. W. 369, the earlier case of State v. Powell, 28 Tex. 627, was overruled. So it may be said that what has been held by this court is that a general statement that the person or persons “deliberately, willfully, and falsely” swore to a statement is insufficient; but in the indictment there must be a specific allegation that the statement so sworn to is untrue.

Now, is there such an allegation in this indictment? We think clearly so, for, after stating that the defendant “did falsely, willfully, and deliberately state that Matilda Williams was in Emily Hodge’s house from 9 o’clock to 11 o’clock on the night of August 8, 1913, and never left said house during.said time, which said statement was then and there material to the issue in said cause, whereas, in truth.and in fact, the said Matilda Williams was, between 9 and 11 o’clock p. m. on the 8th day of August, A. D. 1913, on and near the corner and intersection of .East Fifth street and Red River street, and did then and there commit the offense of theft from the person of one D. A. Patterson,” later in said indictment it alleges that “the said statement made by appellant that Matilda Williams was in the house of Emily Hodge from 9 o’clock to 11 o’clock on the night of August 8, 1913, as hereinbefore stated, was false and, untrue.” What more specific negation of the truth of the statement of appellant could have been made in the indictment? and all that was required at common law and the decisions of this state is that the truth of the statement must be specifically negatived.

In the cases of Wynne v. State, 60 Tex. Cr. 660, 133 S. W. 682, and McCoy v. State, 43 Tex. Cr. R. 607, 68 S. W. 686, it was held by this court: “Where the alleged false statement was that defendant testified to an alibi for a third parts’- — that is, that the defendant was at a certain place at a stated time — the assignment of perjury to be good must allege that the person charged with the crime was present when and where it was committed. An assignment that the party charged with the crime was not at the place testified to by the witness would be an immaterial allegation.” So it is seen that the materiality of this defendant’s testimony consisted in his swearing that appellant was not at the corner of East Fifth street and Red River street by testifying that at this particular time she was at Emily Hodge’s house, and for this reason could not have been at the place where the robbery took place. So it was necessary under the McCoy and Wynne Cases supra, to allege that she was at the corner of East Fifth and Red River streets at the time the theft took place, and this the indictment in this case does allege by specific allegations.

Appellant then assigns that, to prove the offense of perjury as alleged, it is necessary to prove by two witnesses, or one witness strongly corroborated by circumstances, that appellant was at the place where the theft took place, and, if this is true, perhaps it might be said that she is shown to have been at such point and committed the theft by only one witness, Mr. Patterson. But the issue in this case was not whether Matilda Williams in fact committed the theft, but was she at the place where appellant testified she was? She might be acquitted of the crime, yet in her defense appellant swore to a state of facts material to her defense, and, if this state of facts is shown to be false, appellant would be guilty of perjury. Mr. Patterson not only swore that Matilda Williams was at the corner of Fifth and Red River streets and stole his watch during those hours, thus making it impossible for her to have been at Emily Hodge’s house, but in addition to this Policemen Martin, Oyervides, and Grizzard swear that Matilda Williams was not at the house of Emily Hodge-at the .time appellant testified she was there;, that they saw her at another and different place. Thus the fact of the falsity of his testimony was shown by four witnesses, all of whom are credible witnesses in so far as this record discloses.

The court instructed the jury: “A credible witness ‘is one who, being competent to give evidence, is worthy of belief.’ ” This definition was approved in the case of Kitcken v. State, 29 Tex. App. 46, 14 S. W. 392, and is the definition given in Bouvier’s Law Dictionary. No special charge defining the words “credible witness” was requested by appellant, and under such circumstances-the definition as given was sufficient. If appellant desired a more full and complete definition of those terms, he should have requested it to have been given. The only special charge requested by appellant was given: “You are further instructed if, from the evidence, you believe that D. A. Patterson-is not a-credible witness, you must disregard the whole of his testimony.”

The only other ground in the motion alleges the insufficiency of the testimony. This-was a question for the jury to determine, for, if the testimony offered in behalf of the state is believed, it supports the verdict.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in which he earnestly insists that we erred: in sustaining the indictment in this case. In his motion he copies that part of the-indictment wherein it is alleged that on the-trial of Matilda Williams that appellant testified “that Matilda Williams was in Emily Hodge’s house from 9 to 11 o’clock on the night of August 8, 1913, and never left said house during said time, whereas, in truth and in fact, the said Matilda Williams was, between 9 and 11 o’clock p. m. on the 8th day of August, 1913, on and near the corner and intersection of East Fifth street and Red River street,” claiming that both are affirmative allegations and neither one is a negative of the other, and, if this was all that was in the indictment, his position might be tenable; but he neglects to copy another portion of the indictment wherein it is alleged “that the statement that the said Matilda Williams was in the house of Emily Hodge from 9 to 11 o’cloele on the rnght of August 8, 1918, was false and untrue.” This is a specific negative of the fact that Matilda Williams was at the house named, and then the indictment follows with the usual allegation, ‘‘and which said statement so made was deliberately and willfully made, and was deliberately and willfully false, as he then and there well knew.” The rule is that the truth of the alleged false statement must be specifically negatived; but no particular words are required to be used, but any language can be used that does negative the averment specifically.

Appellant also apparently is laboring under the impression that the testimony of D. A. Patterson that Matilda Williams was guilty of theft from his person must-be corroborated; that was true when Matilda Williams was on trial for that offense, but appellant is not charged with that offense, but is charged with committing perjury on that trial by swearing to a state of facts that would render it impossible for Matilda Williams to have been the person who committed that theft, and the issue on this trial is not whether Matilda Williams was in fact guilty of that offense, but the issue is: Did appellant swear falsely to material facts on that trial? He swore that Matilda Williams was at the house of Emily Hodge from 9 to 11 o’clock on that night, and she did not leave that house during that time. The theft took place between 9 and 11 o’clock; in fact the time, as fixed by Mr. Patterson, was about 10 o’clock, and he swears that the theft was committed by Matilda Williams on the corner of Fifth and Red River streets. This is one witness who swears positively to the falsity of appellant’s testimony on the trial of Matilda Williams.

Messrs. Martin, Oyervides, and Grizzard all swear they saw Matilda Williams at a place other than Emily Hodge’s house between the hours of 9 and 11 o’clock on that night, thus showing the falsity of appellant’s testimony by four witnesses. Appellant says that, as the time these latter witnesses saw Matilda was not the exact time when Patterson says the theft took place, this testimony would not be material. But their testimony would show and did show : that his testimony as to the hour he said appellant was at the Hodge house was false, and it was not necessary to show her exact whereabouts by them at the hour the theft took place; only those who saw her commit the theft, if she did, could swear to her then whereabouts.

Appellant overlooks the fact that perjury can be proven by circumstantial evi; dence as well as positive testimony. Beach v. State, 32 Tex. Cr. R. 253, 22 S. W. 976; Franklin v. State, 38 Tex. Cr. R. 348, 43 S. W. 85; Miles v. State, 165 S. W. 567, recently decided, and eases there cited. In this case one witness, Mr. Patterson, swears positively . that Matilda Williams was not at the Hodge house at the very time the theft took place, and swears she was the thief, and, if it should be that the exact time the other witnesses saw Matilda was not at this time, yet it was within the time fixed by appellant that he saw Matilda at the .Hodge house, and would be strong circumstantial proof that he swore falsely in swearing that she was at the Hodge house the very hour the theft took place.

The motion for rehearing is overruled.

DAVIDSON, J., absent at consultation.  