
    URBEN v. STATE.
    (No. 3587.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.
    Rehearing Denied June 25, 1915.)
    1. Peejuet &wkey;o33 — Geneeal VeRdiot — Peooe to Sustain.
    Where there are several assignments of perjury, proof sufficient to sustain any good assignment will sustain a general verdict of conviction.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. &wkey;33.]
    2. Peejuet <&wkey;25 — Elements—Materialitt.
    An indictment for false swearing need not charge that the matter or thing alleged as the basis of the false swearing was in any respect material to any matter or fact then under investigation, as it is only requisite that it- be a false oath as to a fact past or present.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. <¿^25.3
    3. Peejuet <&wkey;21 — Indictment—Proceeding in Which Oath was Administered.
    Under Code Cr. Proc. 1911, art. 465, providing that an indictment for perjury or false swearing need not charg-e the precise language of the false statement, an indictment for false swearing, charging that defendant had a claim against a railroad and had been paid money thereon, and that the false statement as to such claim was deliberately and willfully made and sworn to, and was deliberately and willfully false, as defendant knew when he made it, was sufficient.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 72-75; Dec. Dig. <&wkey;21.]
    4. Indictment and Ineoemation &wkey;?137 — Duplicitt.
    The fact that the two counts of an indictment were substantially the same would be no ground to quash it.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. &wkey;137J
    5. Peejuet <&wkey;32 — Pbosecution—Evidence— Aeeidavit.
    In a prosecution for false swearing to an affidavit made to the claim agent of a railroad on which defendant claimed to have been injured while an employs, the affidavit, with the proof as to its execution and defendant’s signature and oath thereto, without proof by the attesting witness, was admissible; and defendant’s deposition in a civil case in another district court, proved up by the officer before whom it was taken, was also admissible.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. &wkey;S2J
    6. Peejuet <&wkey;36 — Pbosecution—Evidence.
    Evidence in a prosecution for false swearing held not to justify a peremptory charge to acquit.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. § 133; Dec. Dig. <&wkey;>36.]
    7. Peejuet <&wkey;37 — Ohaeactee oe Oath.
    In a prosecution for false swearing, where the court, in reference to the oath made by defendant, charged that the alleged false statements must have been made by defendant of his own free will and accord, and that to warrant a conviction it was necessary that the state prove that the affidavit was voluntarily made, sufficiently defined the word “voluntarily,” and defendant’s requested addition “unrestrained by external interference, force, or influence, and not prompted or suggested by another,” was properly refused.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 134-138; Dec. Dig. &wkey;37.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    George Urben, alias Robert E. Erwin, was convicted of false swearing, and he appeals.
    Affirmed.
    Paul C. Greene and A. S. Baskett, both of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of false swearing and assessed the lowest punishment.

Appellant claimed that while working as an employé of the Missouri, Kansas & Texas Railway Company of Texas, called the “Katy,” he was ruptured on July 21, 1914, by the negligence of said railway company. On July 27th, following, while in a hospital for treatment for his claimed injury, he was interviewed by Mr. C. H. Schuttee, the claim agent of the Katy, and then and there made a lull affidavit before a proper notary public setting out in detail when and where and how he was so ruptured, and he claimed $1,-500 damages therefor. The proper execution of said affidavit is fully averred in the indictment, and the affidavit in full copied therein with full explanatory averments. Some 10 specific statements therein are alleged as the basis for false swearing, and they are each properly traversed. Among these special statements are the five following:

“This is the first work I ever did in the employ of a railroad.” “I was never ruptured before in my life and never before my accident on the Katy did I ever have a swelling in my groins and in my back, and never had any soreness in my groins or bag.” “I have never before in my life sustained an injury while working for a railroad or street car company, and have never sustained an injury on a railroad or street car company when I was not in their employ.” “I have never before had a claim or suit against a railroad or street company, and have never collected or been paid money for a claim or suit.” “I have never had a claim or suit against any one before in my life.”

The indictment is in two counts; each is very voluminous. We can see no material difference between them, except perhaps the second is somewhat shorter than the first. Each is substantially, if not literally, in the form prescribed by Judge White in section 352 of his Ann. Penal Code, and also that of Judge Willson in his form 142.

Appellant made a motion to quash the indictment on various grounds. Most of these become wholly immaterial because the court in its charge restricted' the jury to the consideration of the above five of the statements made the basis of false swearing. As expressly held by this court in Beach v. State, 32 Tex. Cr. R. 253, 22 S. W. 977:

“It is well settled, that where there are several assignments of perjury, and there is proof sufficient to sustain any good assignment, a general verdict will be sustained. 2 Bish. Crim. Proc. § 934; Whart. Crim. Law, 2260; 2 Greenl. Ev. § 93; Am. & Eng. Encycl. of Law, title ‘Perjury,’ § 7.” Moore v. State, 32 Tex. Cr. R. 405, 24 S. W. 95.

In Simpson v. State, 46 Tex. Cr. R. 77, 79 S. W. 530, this court said:

“Where there are several assignments of perjury a conviction may be predicated upon either and it is not necessary to prove the others.” Manning v. State, 46 Tex. Cr. R. 332, 81 S. W. 957, 3 Ann. Cas. 867; Hutcherson v. State, 33 Tex. Cr. R. 73, 24 S. W. 908; Robertson v. State, 150 S. W. 893.

We will, therefore, state his objections as applicable only to the last two of the above-quoted assignments made the basis of false swearing herein.

One of his grounds to quash is: Because the indictment nowhere charged that the matter or thing alleged as the basis for false swearing was in any respect material to any issue or matter then under investigation. This has been expressly held against appellant by this court in an opinion by Judge Henderson, in Wilson v. State, 49 Tex. Cr. R. 497, 93 S. W. 547, saying:

“We understand that any false oath as. to something past or present affords the basis of false swearing. It is not necessary that it be on a material question, as in perjury; it is simply requisite that it be a false affidavit to a fact past or present.”

The other ground is that the indictment does not allege when or where he had a claim against any other railroad company, nor what railroad company, or the amount or nature of the same, or when and where he was paid money on such a claim, or how much he had been paid. On this point the indictment in addition to alleging that his said statement is false, etc., also alleges: “And whereas in truth and in fact the said George Urben has had a claim against a railroad company, and has collected and has been paid money for such a claim”—and further that said alleged false statement was deliberately and' willfully made, and was deliberately and willfully false as he (the said George Urben) then and there well knew when he made the same.

It was wholly unnecessary to make any further or other allegation on this point than was contained in the indictment. Code Cr. Proc. art. 465; Branch, Criminal Law, § 650, p. 417; Jones v. State, 174 S. W. 1071.

Bach count of the indictment was sufficient. The fact that the two counts were substantially the same would be no ground to quash it.

Said Schuttee fully identified the said affidavit copied in the indictment, produced and introduced in evidence on the trial. He testified that he wrote the same to get the facts about appellant’s claimed injuries, as he presumed he wanted to make a claim for damages, and that when he had written it in appellant’s presence he gave it to him and asked him to read it over and to read each page and to sign each page, which appellant did. Mr. George West, the notary public before whom appellant swore to said affidavit, testified that appellant signed and swore to it before him two distinct times; that when he first swore to it there was no attesting witness, and that when he took it, thus first sworn to, to Mr. Schuttee that Mr. Schuttee gave it back to him and told him to have appellant to again swear to the affidavit with an attesting witness, and that he (West) again presented it a second time to appellant in the presence of Florence Scott, who then and there signed it as an attesting witness; that at this time he again swore appellant to it after he signed it this second time and that he also, on this occasion, swore Florence Scott as an attesting witness. All this is shown on the face of the affidavit itself. Florence Scott was not produced as a witness, and did not testify to prove up the signing, witnessing, and swearing to said affidavit by appellant. The court did not err in admitting in evidence said affidavit with the proof made as to its execution and being signed and sworn to as shown above. It was unnecessary to also prove it up by Florence Scott. Adams v. State, 49 Tex. Cr. R. 361, 91 S. W. 225; Whart. Crim. Law (11th Ed.) § 1576.

Neither' did "the-court-err in' admitting in evidence the deposition of appellant in a civil case in another district court of Dallas county, it being- clearly established by the officer who took the deposition that appellant gave the answers and signed and swore to the same, having been proven up by the said officer before whom they were taken.

The evidence clearly established by the testimony of two or three witnesses, as well as the sworn testimony of the appellant in answer to the interrogatories in said civil case, that prior to his claimed injury in this case he had been ruptured while in the employ of another railroad company other than the Katy, that he had made a claim against said railroad company for $500 for said rupture, and had been paid by that company that sum therefor. The evidence is overwhelming, and in no way contradicted, that appellant’s said affidavit in the particular hereinabove mentioned was false, and he knew it was when he signed and swore to it, and that he made the said false affidavit under all the circumstances necessary to show his guilt. The court, therefore, should not have directed the jury to acquit him by giving appellant’s requested peremptory charge to that effect

The court gave an apt, full, and clear charge, and together with the special charge given at appellant’s request completely presented the matter correctly in every way to the jury for a finding. If it was necessary at air to define the word “voluntarily” in his charge, the court correctly did so in this language:

“ ‘Voluntarily,’ as used in this connection means that the alleged false statements must have been made by the defendant of his own free will and accord.”

And the court did not err in refusing to add thereto, as requested by appellant, this:

“Unconstrained by external interference, force, or influence, and not prompted or suggested by another. Now if you find and believe from the evidence that the defendant did not make this alleged false statement voluntarily, or if you have a reasonable doubt thereof, yon will acquit him, and say by your verdict ‘not guilty.’ ”

The court, in refusing to add this to his charge, stated the reason he did so was:

“The court believes he has correctly given a definition of ‘voluntarily.’ The court does not believe that if external interference or influence was brought to bear on him or that some one prompted or suggested it to him that this would prevent it from being voluntary. If so then a man could swear falsely and go free if some one asked him to do it. I see no evidence of fraud or duress.”

The evidence in no way tends to show that there was any fraud or duress whatever towards appellant when he signed and swore to said affidavit, but, on the contrary, it shows that he did so voluntarily as defined by the court. Besides, in other portions of the charge the court told the jury specifically that in order to warrant a conviction for this offense, among other things, it was an essential element to be proven by the state that said affidavit was voluntarily made, and that if such element was wanting a conviction could not be had, and further, affirmatively, required the jury to believe beyond a reasonable doubt that such was an elementary essential. And still in addition, charged that the burden of proof was on the state, the presumption of innocence prevailed until his guilt was established beyond a reasonable doubt, and if they had a reasonable doubt to acquit him. And still further, gave appellant’s special charge No. 5, which required the jury again to believe from the evidence beyond a reasonable doubt, that said affidavit, in the particular mentioned, was voluntarily made, and unless the jury so found beyond a reasonable doubt to acquit him.

No error in any particular in the trial of this case has been pointed out. The judg' ment is affirmed. 
      <grs>For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     