
    WELCH v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.
    Rehearing Denied June 11, 1913.)
    1. Perjury (§ 6) — '“False Swearing”— What Constitutes.
    The offense of false swearing is consummated when accused signs and swears to a false affidavit, even though he does not use the affidavit for the purpose for which it was intended.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 7-17; Dee. Dig. § 6.]
    2. Perjury (§ 26) — Prosecution — Indictment.
    An indictment for false swearing, alleging that the affidavit was unlawfully, deliberately, corruptly, and willfully made, is not insufficient, even though not using the word “voluntary” ; the other language showing that the affidavit was voluntarily made.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 90-94; Dec. Dig. § 26.]
    3. Perjury (§ 15) —False Swearing —Defenses.
    In a prosecution for mating a false affidavit, it is no defense to show that accused’s attorney advised or suggested to him that he make such affidavit as a means of procuring a continuance.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. § 62; Dec. Dig. § 15.]
    4. Perjury (§ 15) — False Swearing — Defenses.
    In a prosecution for uttering a false affidavit, the fact that accused was suffering from an illness at the time does not present the issue that it was not willfully and deliberately made.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. § 62; Dec. Dig. § 15.]
    5. Perjury (§§ 5, 15) — “False Swearing”— What Constitutes Offense — “Deliberately” — “Willfully.”
    If any person deliberately and willfully, under oath legally administered, makes a false statement by a voluntary declaration on affidavit not required by law, he is guilty of false swearing, but such a statement, made through inadvertence or under agitation or by mistake, does not constitute false swearing; the ex-' pressions “deliberately” and “willfully” meaning “made after meditation and with an evil intent.”
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 4 — 6, 35, 62; Dec. Dig. §§ 5, 15.
    
    For other definitions, see Words and Phrases, vol. 3, pp. 2670, 2671; vol. 2, pp. 1951-1955; vol. 8, pp. 7632, 7468-7481.]
    6. Perjury •(§ 37) — Trial—Instructions.
    In a prosecution for false swearing to a false affidavit, intended by accused to be used as a basis for a continuance, but was not, it was not improper for the court to charge the jury that the affidavit was not made in the course of a judicial proceeding.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 13A-138; Dec. Dig. § 37.]
    7. Criminal Law (§ 823) — Instructions — Error Cured by Giving Other Instructions.
    'In a prosecution for uttering a false affidavit, where the court charged on the question of insanity, informing them that, if accused was' of unsound mind and not cognizant of the facts stated in the affidavit, it could not have been willfully, deliberately, and corruptly made, the giving of another charge informing them that the affidavit was sufficient if its falsity was legally proved to warrant a conviction was not prejudicial error.
    _ [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823. J
    8.Criminal Law (§ 331) — Triai>-Burden of Proof — Insanity.
    In a criminal prosecution where the defense was insanity, and accused stated that he was found to be insane after the offense, but had recovered his reason at the time of the trial, and there was nothing to disclose his insanity at the time of the offense, the burden was upon accused to establish by preponderance of the evidence that he was of unsound mind at the date of the commission of the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dec. Dig. § 331.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Tom Welch was convicted of false swearing, and he appeals.
    Affirmed.
    Shurtleff & Black, of Hillsboro, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases 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 false swearing, and his punishment assessed at three years’ confinement in the penitentiary. There are a number of complaints in regard to admitting certain testimony, but, if any bills of exception were reserved or objections made during the trial, it is not manifested by the record before us, and under such circumstances these grounds cannot be considered.

The facts would show that appellant was arrested, charged with petty theft, in the county court of Erath county. Thereafter he appeared before S. H. Davis, a justice of the peace in Erath county, on the 11th day of September, represented himself to be G. I. Gambell, and made an affidavit that he (Gambell) had sold the onions with which appellant was charged with stealing to appellant, Tom Welch. Appellant insists that would constitute perjury and not false swearing. Two days later, on the 13th, when his case was called for trial, he filed an application to continue the case on account of the absence of Gambell, but he did not attach this affidavit to the application, but he says his lawyer told him they might call Mr. Davis as a witness, and he would identify him (appellant) as the person who represented himself to be Gambell, but that he and his attorney prepared another statement in substance the same, and he (appellant) signed Gambell’s name to it, and his attorney signed the name of G. J. Howard as a witness to Gambell’s signature. The record demonstrates that the affidavit made by appellant before Mr. Davis was not attached to the motion for a continuance nor used in the trial, but was found on his person when he was arrested charged with this offense. The offense of false swearing was committed and became a completed offense when he signed and swore to the affidavit before the justice of thé peace.

There is no merit in the contention that the indictment does not sufficiently allege that the affidavit was voluntarily made. It does charge in specific terms that it was “unlawfully, deliberately, corruptly, and willfully made”; and, while the word “voluntary” is not used, yet other language used in the indictment conveys that meaning and is subject to no other construction.

It would be no defense that he consulted with an attorney and made the affidavit in pursuance of a suggestion of the attorney. If he deliberately made a false affidavit, knowing it to be false, that one suggested this as a means of getting the case dismissed or continued would be no defense, and the court did not err in refusing the special charge presenting that theory.

Neither would the fact that defendant was suffering at the time from a' bowel trouble, under the evidence on this trial, present an issue that it was not willfully and deliberately made. The defendant’s testimony tended to raise the issue that he might have been insane at the time, and the court on this issue instructed the jury: “Among other defenses set up by the defendant is that of insanity; that is, that at the time the alleged false affidavit was made, if he did make it, he was of unsound mind, and therefore was not cognizant of the facts stated in said affidavit, and that same was not therefore willfully and deliberately and corruptly made. Upon this issue you are instructed that the law presumes every man sane until the contrary appears, and that the burden is on the defendant to establish his insanity by a preponderance of the evidence. Now if you believe from a preponderance of the evidence in this case that at the time the defendant made the alleged false affidavit before S. H. Davis, which has been exhibited in evidence before you, if he did make it, he was laboring under such a disease of mind that he did not know the act he was doing was wrong, then you will acquit him.”

The court also instructed the jury: “In the first place then you are instructed that our law provides that, if any person shall deliberately and willfully, under oath legally administered, make a false statement by a voluntary declaration or affidavit which is not required by law or made in the course of a judicial proceeding, he is guilty of false swearing, and shall be punished. A false statement, made through inadvertence or under agitation or by mistake, is not false swearing. No person shall be convicted of the offense of false swearing, except upon the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence as t'o the falsity of the alleged false statement under oath. * * * The term ‘deliberately,’ as used in this charge, means that the statement must have been made with deliberation and after meditation, and that it was not made hastily, through inadvertence, or by mistake. The term ‘willfully,’ as herein used, means that the statement must have been made with evil intent and legal malice and without reasonable grounds for believing it to have been lawful, and without legal justification.”

It is thus seen that the court did correctly define the offense, and the criticism that the court did not instruct that it must have been a “voluntary” affidavit is not borne out by the record.

After setting out the affidavit the court instructed the jury: “I charge you, gentlemen, that said alleged false affidavit was not required by law, and was not made in the course of a judicial proceeding, and is sufficient, if its falsity is legally proven to your satisfaction beyond a reasonable doubt to warrant a conviction of the defendant.” It was not inappropriate for the court to tell the jury, as a matter of law under the facts, that the affidavit in question was not made in the course of a judicial proceeding; and while the latter part of this paragraph may be subject to criticism, and if it stood alone in the charge might be error, yet the court, as herein before shown, appropriately presented the only defense offered by appellant, that he was insane, and it is not such error as will necessitate a reversal of the case. If appellant was sane, he is positively identified as the man who made the affidavit signing another’s name to it; its absolute falsity is shown, no effort being made to show that it spoke the truth. Appellant admitted he knew no such man as Gambell; had bought no onions from him; and in his written confessions introduced in evidence he himself left himself no defense other than insanity.

While appellant states that subsequent to this time he had been adjudged insane, yet he states he had recovered his mental status at the time of this trial; and, as there is nothing to disclose that at the time of the trial for insanity there was any evidence offered nor finding that it covered the period in which he is alleged to have committed this offense, the facts do not bring it within the rule announced in the case' of Witty v. State, 153 S. W. 1146, decided at this term of court, and the court did not err in instructing the jury that the burden was on defendant to show by a preponderance of the testimony that he was of unsound mind at the date of the commission of the offense.

The judgment is affirmed.  