
    WOOTEN v. STATE.
    (No. 7286.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1923.)
    1. Criminal law <&wkey;4l9, 420(1) — -Matters occurring subsequent to alleged offense held not available to prove defendant’s guilt.
    In prosecution for perjury, where the presence of W., who was suspected of burglary, at defendant’s home between certain hours was a material inquiry before the grand jury, and defendant’s testimony affirming such presence was found to be false, evidence that the grand jury had returned indictments against W. and others, W.’s action in pleading guilty, and finding of W. guilty, being subsequent to defendant’s alleged offense, and not made in his presence nor under his control, was hearsay, and not available to corroborate an accomplice to the burglary who had testified for the state, nor to prove defendant guilty.
    2. Perjury &wkey;>37(2) — .To constitute offense, statement must be false and known to be so.
    In perjury, the statement must be false, and must be deliberately and willfully made, and hence, where defendant requested, an instruction that the statement must not only be false but known to defendant to be so, to qualify the request by adding the clause, “or that the statement was made in disregard of what the truth was,” might be misleading.
    Appeal from District Court, Llano County; J. H. McLean, Judge.
    T. B. Wooten was convicted of perjury, and -he appeals.
    Reversed and remanded.
    Flack & Flack, of Menard, and Johnson & Dalrymple, of Llano, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is perjury; punishment fixed at confinement in the penitentiary for a period of two years.

The opinion on the former appeal is reported in 91 Tex. Cr. R. 108, 237 S. W. 921.

The presence of T. B. Wooten at the home of the appellant between the hours of 12 and 4 o’clock at night on the 9th day of July was a material inquiry before the grand jury, and the appellant’s testimony affirming such presence was found by the jury in the present case to have been false. T. B. Wooten was suspected of burglary, and the grand jury had the matter under investigation when the testimony of the appellant was given.

To sustain its case, the state relied upon the testimony of Arthur Smith, an accomplice in the burglary, and various surrounding circumstances. A rain had taken place on the night that the Watkins Garage was burglarized, and the burglary was committed after the rain. The time with reference to the rainfall when T. B. Wooten was at home became a material inquiry upon the trial. One of the grand jurors was called as a witness, and testified that, upon the investigation of the charge of burglary, the grand jury had returned indictments against T. B. Wooten, Archie Capps, and Arthur Smith.

The docket of the district court of Llano county, showing that on the 20th day of July, 1921, the grand jury returned into open court an indictment against T. B. Wooten, was introduced in evidence.

The court received the testimony of the witness Halliford to the effect that a bill of indictment was presented against T. B. Wooten in the district court of Llano county, and that he entered thereon a plea of guilty of the theft. His testimony identified the transaction upon which the plea of guilty was based, as the burglary which was under investigation at the time it is charged the perjured testimony was given. Appropriate objections were made against the receipt of each of these items. After admitting them, the court withdrew all except the proof that T. B. Wooten was indicted for the offense, 'entered a plea of guilty, and was adjudged guilty of theft of the property mentioned. The action of the grand jury in indicting Smith and T. B. Wooten for the burglary, the action of T. -B. Wooten in pleading guilty, and the court finding him guilty, were all subsequent to the alleged offense of which the appellant was charged, and were not made in his presence, nor were they under his control. Each of them portrayed the acts of third parties with whose conduct the appellant was in no way connected. The testimony of Smith was essential to the state. Its corroboration was also necessary. The hearsay evidence introduced was not available to corroborate the accomplice nor to prove the guilt of the appellant.

Among the elements of the offense of perjury is that to the effect that the statement must be false and must be deliberately and willfully made. The appellant requested .an instruction to the effect that to warrant a conviction the jury must believe that the statement was not only false but known to the appellant to be so. This instruction was given with the addenda, “or that the statement was made in disregard to what the truth was.” This qualification might be mis: leading. It will doubtless not present itself in the present shape upon another trial, and a detailed discussion of the matter is deemed unnecessary at the present time. Suffice it to say that the issues in the case arising from the evidence, to the mind of this court, suggest no cogent reason for a deviation from the language of the statute and the previous interpretations thereof by this court in stating the elements of the offense.

The .other matters complained of are not deemed important nor erroneous. In substance, they were passed on in the former appeal.

Because of the use against the appellant of the hearsay testimony mentioned, the judgment is reversed, and the cause remanded. 
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