
    ROBERTSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 16, 1912.
    On Motion for Rehearing, Nov. 13, 1912.)
    1. Criminal Law (§ 1178) — Appeal—Questions Reviewable — Waiver of Issues.
    The Court of Criminal Appeals will consider and pass on all questions raised in the trial court, unless expressly waived in the Court of Criminal Appeals; and a question raised in the court below and not presented in the brief on appeal is not thereby waived.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 3011-3013; Dec. Dig. § 1178.]
    2. Perjury (§ 19) — Indictment — Sufficiency.
    An indictment for perjury which alleges that it was a material inquiry before a grand jury whether accused unlawfully delivered to an infant intoxicating liquor, that accused, as a witness before the grand jury, falsely testified that he had not permitted the infant to order intoxicating liquor in accused’s name, and that he had not signed his name on express books and received beer consigned to him, and had not delivered the same to the infant, that the grand jury was investigating to ascertain who delivered intoxicating liquors to infants, that accused well knew that he had permitted the infant to order intoxicating liquor in his name, and that he had signed his name on express books, and had received liquor and had delivered the same to the infant, sufficiently charges the offense, within Code Cr. Proe. 1911, arts. 453, 460, 465, prescribing the requisites of indictments generally and indictments for perjury.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 65, 66, 70, 71; Dec. Dig. § 19. For other definitions, see Words and Phrases, vol. 6, pp. 5305-5310; vol. 8, p. 7751.]
    3. Perjury (§ 19) — Indictment—Sufficiency.
    An indictment for perjury, based on accused giving false testimony before the grand jury, need not allege that he was warned by the grand jury that he was not compelled to inform on himself, and that he could decline to testify against himself.
    [E'd. Note. — For other cases, see Perjury, Cent. Dig. §§ 65, 66, 70, 71; Dec. Dig. § 19.]
    4. Perjury (§ 32) — Evidence—Admissibility.
    Under an indictment for perjury, based on accused giving false testimony before the grand jury, testimony that when accused appeared before the grand jury he was warned that he did not have to testify to anything that would incriminate him, and that if he did testify anything he said could be used against him on the trial of his case, was admissible, though the indictment did not allege that he was so warned.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    5. Perjury (§ 32) — Evidence—Admissibility.
    Accused on trial for perjury, based on false testimony before the grand jury that he had not delivered intoxicating liquor to an infant, may not show that the infant testifying for the state had made one sale of intoxicating liquor, without attempting to show that he had been indicted or convicted of a felony for unlawfully selling liquor.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    6. Cbiminal Law (§ 1173) — Instructions— Submission ow Issues — Harmless Error.
    The failure to submit questions to the jury was not prejudicial to accused, where the evidence on the issues was not contested; and under Code Or. Proe. 1911, art. 743, the judgment of conviction will not be reversed on that ground.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dee. Dig. § 1173.]
    7. Perjury (§ 29) — Indictment—Oeeenses.
    Where an indictment for perjury presented separate and distinct allegations of materially false testimony, and distinctly traversed them, the state, to support a conviction, was not compelled to prove the falsity of all the statements charged conjunctively.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 97-106; Dee. Dig. § 29.]
    On Motion for Rehearing.
    8. Criminal Law (§ 742) — Evidence—Credible Witness. \
    Though the main witness for the state on a trial for perjury may have been contradicted, the court may not, as a matter of law, charge that he is an incredible witness, but must leave that question to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1098, 1138, 1719-1721; Dee. Dig. § 742.]
    Appeal from District Court, Hopkins County; R. L. Porter, Judge.
    Walter Robertson was convicted of perjury, and he appeals.
    Affirmed.
    R. D. Allen, of Sulphur Springs, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. ¡4 Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
       Por other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant has filed a motion for rehearing herein, wherein he claims that he waived and does now waive certain questions raised in the court below, discussed and decided by the original opinion herein, and requests and urges the court to so change the original opinion herein as to omit such matters, stating that it places him in an embarrassing position because of the fact that he had waived' the said questions.

Appellant’s statement that he had waived questions is based on the idea that because he did not present them in his brief thereby he waived them. This is not the practice in this court, and never has been. That is the practice in the Courts of Civil Appeals, for the rules there prescribe expressly that when a question raised in the lower court is not presented by the briefs it is thereby waived; and the rules also there prescribed, in civil cases, that if no brief is filed by the appellant the court will not consider the case, but dismiss it. This court cannot, under the law, dismiss any case because no brief is filed for the appellant, but must consider, whether briefed or not, all questions raised and properly presented by either bills of exceptions or • grounds of the motion for new trial. Frequently attorneys in briefing their cases here brief only a portion of the questions thus raised; and experience has shown us that when we pass upon those questions alone generally we are taken to task by attorneys in motion for rehearing, because we did not pass upon the questions thus raised. Hence it is the practice of this court to consider and pass upon all questions raised in the court below, unless expressly waived in this court.

However, as appellant’s attorney in this case was laboring under this mistake in the practice of this court, and urges that such questions as he had not briefed were waived, and urges the court, further, to omit from the opinion the discussion and decision of such questions, we have concluded in justice to him to comply with his request. Therefore the original opinion, as heretofore rendered, is hereby set aside and vacated, and will not be published. Instead thereof this is given as the original opinion:

Appellant was convicted of perjury and given the lowest penalty — two years in the penitentiary.

The evidence in this -■> ease was uncon-tradieted. Appellant introduced no evidence, and did not testify himself. In* some instances he did not cross-examine the witnesses. The evidence clearly shows that on August 9, 1911, Paul Garvin, a boy 18 years of age, had delivered to him and received a case of four dozen pint bottles of beer at or near Como, in Hunt county, Tex. On August 28, 1911, the district court of said county convened in regular session, on which date the grand jury was properly organized and went to work. Information was received by it that said boy, Paul Garvin, had received said beer, and began to investigate how and from whom he had procured it. They summoned him as a witness and tried to get him to tell it, but he refused. They .properly laid the matter before the district judge and court, and he was committed to jail until he would testify. He was thus in jail about a week. Just before all this occurred, the grand jury properly summoned appellant before it as a witness. He was duly sworn and then properly informed by the district attorney, who was present conducting the examination, and by the grand jurors, of the said question which they had under investigation, and repeatedly informed him and told him that if he was in any way guilty of violating any law in that matter he could not be forced to give evidence against himself, but in the event he did make any statement in the grand jury room his evidence could be used against him on the trial, if there was a trial. The matter was, as stated, fully explained to him and gone over with him that if he was guilty in any way in the transaction he did not have to tell it, and could not be forced to tell it. After being thus fully informed and warned, he said he wanted to make a statement, and then and there did make a statement.- He was then asked if he did not give Paul Gar-vin permission to use his name in ordering a shipment of beer at Gomo on or about August 9, 1911. He swore he did not give him permission to use his name at that time or any other time. He was then asked if it were not a fact that a shipment of beer came to him in his name in the express company’s office at Como about said date, and if he did not sign his name, to the express book, or make his mark on said book to get that beer, and if he did not get it and deliver it to Paul Garvin. He swore, in effect, that none of this occurred at that time or any other time. The testimony further clearly shows that he testified falsely in all this; that on or about August 9, 1911, at Como, in said county, he did permit and authorize Paul Garvin to order said beer in his (appellant’s) name; and that he (appellant), on or about said date, did sign his name and make his mark on the express company’s books at Como, in said county, and receive from the agent at said express office a shipment of beer consigned to him, and did deliver the same on that date to said Garvin.

Appellant made a motion, which was overruled, to quash the indictment, on the grounds (1) that it charged no offense against the laws; (2) that it was uncertain, confusing, and did not give appellant notice of the offense with which he was charged; (3) that the allegations of fact upon which the perjury was based were upon immaterial matter; (4) that it shows on its face that the grand jury was investigating an offense supposed to have been committed by appellant, and it does not show that he was warned by the grand jury that he was not compelled to inform on himself, and did not disclose to him his rights in testifying, and does not show that it was investigating offenses generally, but was an investigation of supposed criminal acts of the appellant; (5) it is contradictory, in that it alleges that he did sign his name and make his mark to the shipment of liquor; and (6) it does not allege that the beer received by him and delivered to said Garvin was intoxicating.

The indictment in this ease in all respects substantially, and in every respect as literally as it could be, is in accordance with the form for such an indictment laid down by Judge White in section 333 of his Annotated Penal Opde, and has been approved uniformly by this court in a large, number of cases collated and cited under said section. After all of the necessary preliminary allegations, it alleges: That it became and was a material inquiry béfore said grand jury, and necessary for the due administration of the criminal laws of Texas and the ends of public justice, whether appellant at said time and place did unlawfully give and deliver, or cause to be given and delivered, to said Garvin, a person then under the age of 21 years, intoxicating liquor; and that appellant as such witness-before said grand jury, under the sanction of an oath so properly and legally admin-istere.d to him on said date, did deliberately, willfully, and corruptly, testify and say, in substance and effect, that he did not, in said county, on or about said date, or at any other time during the year 1911, permit said Garvin to order intoxicating liquor in his name; and that he,, on or about said date, did not sign his name or make his mark on the express books at Como, said county and state, and receive from the agent at said office a shipment of beer consigned to him, and did not deliver or cause it to be delivered to said Garvin. That said statements-were material in this: That said Garvin is-a person under 21 years of age, and on or about said date, at Como, in said county, said Garvin received a shipment of beer at the express office in said town. That the grand jury was investigating to ascertain who was guilty of violating the provisions-of the Penal Code against giving and delivering, or causing to be given and delivered, intoxicating liquors to a person under the age of 21 years without the written consent of the parent of such minor; whereas, in truth and fact, as he (appellant) then and there well knew, he did unlawfully, in said" county, on or about said date, permit said Garvin to order intoxicating liquors in his name, and that he (appellant), on or about said date, did sign his name and make his-mark on the express books at Gomo, said county and state, and did receive from the express agent at said office a shipment of' beer consigned to him (appellant), and did' unlawfully deliver and cause it to be delivered to said Garvin, the said Garvin then and there being a person under the age of 21 years, without the written consent of the parent of said Garvin. And said statements so made by appellant before said grand jury were deliberately and willfully made, and were deliberately and willfully false, as he-then and there well knew. We think it unnecessary to take up the several allegations of this indictment, under the authorities, to-show that none of appellant’s grounds to quash are well taken. The indictment itself, the full substance of which we have-given, we think, answers each and all of the objections made thereto. It sufficiently and fully substantially complies with our statutes prescribing the requisites of indictments generally and the indictment for perjury. C. C. P. arts. 465, 453, and 460.

It was not necessary for it to allege that appellant was warned by the grand’ jury that he was not compelled -to inform-on himself, and that he had the right to decline to testify against himself. And. the-court did not err in permitting the witnesses Lewis, Martin, and Sweeton to testify that when appellant appeared before the grand jury he was warned that he did not have to testify to anything that would incriminate him, and was not compelled to testify against himself, and that if he did testify anything he might say 'could be used against him, but not for him, on the trial of his case, on the objection by appellant that there was no allegation in the indictment of such warning.

Neither did the court err in refusing to allow appellant to prove by the witness Paul Garvin one sale of intoxicating liquor made by him; the court stating to counsel that he would permit him to show and prove that the witness was following or pursuing the occupation of selling, or that he had been so charged—no effort being made by appellant to do this. Appellant’s bill attempting to raise this question does not show that he attempted to prove that appellant had been indicted or convicted of a felony for unlawfully selling intoxicating liquors at any time or in any way. Even if he had been convicted of selling intoxicating liquor in prohibition territory as a misdemeanor, it would not have been admissible, as all the decisions of this court •on the point so decide. It is unnecessary to •cite them.

In his motion for new trial, appellant complains that the court erred in its charge, in that nowhere was the issue of the minority of Paul Garvin submitted to the jury for a finding, as alleged in the indictment, nor to the consent or noneonsent of the parent of said Garvin to permit the delivery of liquor to Mm. The court in his charge did omit this; but the evidence on this point was in no way contested on the trial. Both witnesses Paul Garvin and his father testified that he was 18 years of age. They were not even crossed on this subject. Appellant asked no special charge whatever on the subject. Paul Garvin’s father testified positively that he did not give appellant, nor any one else, the written permission to give •or deliver to his son Paul any intoxicating liquor—beer or whisky. It would have been proper for the court to have submitted both of these questions to the jury; but such error was in no way calculated to injure the rights of the appellant, and did not in any way injure his rights. Under such circumstances, article 743 (723), C. C. P., requires “the judgment shall not be reversed.”

Appellant contends that, as the indictment charged conjunctively several different false statements alleged to have been made by appellant, the court could not single out any one of them, but was compelled to charge on all of them taken together and not disconnected. In this case the indictment is clearly so drawn as to present separate and distinct allegations of material false testimony, and to distinctly traverse them, in which case the reverse of appellant’s contention is true. Sisk v. State, 28 Tex. App. 436, 13 S. W. 647; Washington v. State, 23 Tex. App. 336, 5 S. W. 119; Jackson v. State, 15 Tex. App. 579; Donohoe v. State, 14 Tex. App. 638; Terry v. State, 62 Tex. Cr. R. 73, 136 S. W. 485.

The only other question appellant raises which is necessary to consider is Ms contention that the record shows the falsity of appellant’s testimony by but one witness, and that there is no strong corroborating evidence to sustain this witness. The question of the credibility of the witness, and that where only one witness testifies he must be tíorroborated by other evidence, was fully, amply, and properly submitted to the jury. The false evidence which the court submitted was that appellant did not sign his name or make his mark on the express books at Como, Hopkins county, Tex., and receive from the agent at said express office a shipment of beer consigned to him, and did not deliver or cause it to be delivered to said Paul Garvin. In our opinion this was fully proven by one witness and strongly corroborated by ample and sufficient other evidence to legally sustain this conviction.

There being no reversible error pointed out, and the evidence fully and amply sus-taifiing the conviction, the judgment will be affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant complains on two grounds only: First, that the court erred in holding that the indictment was sufficient, in that it did not expressly allege that the appellant was warned, etc., before he testified before the grand jury, and that because the indictment did not so allege the court erred in permitting the testimony of the witnesses Lewis, Martin, and Sweeton that such warning was given. These questions were correctly decided in the original opinion, and no further discussion of them is necessary.

The other ground of his motion for rehearing, as we understand it, is that the court erred in not giving Ms special charge, shown by his bill of exceptions No. 6, to this effect: “Now comes the defendant in the above entitled and numbered cause, after the state has rested its case, and moves the court to instruct the jury to return a verdict of not guilty for want of legal and necessary proof of guilt, and for want of sufficiency of proof of the falsity of the alleged statement of perjury in the indictment by two credible witnesses, or one credible witness strongly corroborated”—claiming that this should have been given in accordance with article 805 (785), C. C. P., to that effect. Instead of this, the court charged the jury, in. a separate and distinct paragraph, in the precise language as requested by appellant in Ms special charge No. 6: “You are instructed that a credible witness is one who being competent to give evidence, is worthy of belief.” And, in addition, this: “The jury are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given to the testimony; but in this case the state must make out its case by the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence of the falsity of the defendant’s statement under oath.” And, still in addition, gave appellant’s eighth special charge as follows: “A conviction for perjury can be had in this state only upon the testimony of two credible witnesses, or of one credible witness strongly corroborated by other evidence as to the falsity of the defendant’s statements under oath; and if you have a reasonable doubt of the sufficiency of the evidence to prove such' falsity of such statement, if you find there is such evidence of falsity of the alleged statement, or if you have a reasonable doubt as to the sufficiency of evidence of the corroboration, if you find there was any corroboration, you will find the defendant not guilty.”

The effect of appellant’s contention on this point is, as we understand it, that because the state’s main witness, Paul Garvin, was contradicted, and did not come into the court with clean hands, and his testimony showed there was a boy with him when appellant delivered the beer to him, whom the state did not have to testify, that the court, as a matter of law, must determine and charge that he was not a credible witness, and, in addition, from all the testimony must decide, as a matter of law, that there was no sufficient corroboration of said witness, which would require the court to submit the question to the jury, or justify a finding of guilty.

In our opinion the court did not err in not giving appellant’s said special charge, above quoted, in his bill No. 6, which he complains should have been given, but that the court properly and fully submitted the question to the jury for its finding; and the charges the court did give on the subject, and those he gave as requested by appellant, were as favorable to him as the law would justify. Even though the main witness for the state may have been contradicted, the court could not, as a matter of law, charge that he was an incredible witness, but must leave that matter for the jury. After a careful review of the testimony, we are of the opinion that there was ample evidence justifying the jury to believe that the state’s main witness was strongly corroborated, and the evidence was amply sufficient to sustain the verdict; and the court could not, as a matter of law, take that question from the jury and decide it. The record shows that said boy, who was with Paul Garvin when he testified appellant delivered the liquor to him, left the county about the time the grand jury met, and his whereabouts was unknown.

There is nothing further raised by appellant in his motion for rehearing which requires any discussion. The motion for rehearing is overruled.  