
    POULTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    1. Perjury (§ 32) — Evidence—Admissibility — Materiality of Testimony.
    Since in a perjury case, where defendant was charged with testifying falsely before the grand jury as to his brother’s age, it was incumbent on the state to show that the grand jury was inquiring into an alleged violation of law, evidence showing that an action was pending against the brother in the justice court, in which he had entered a plea of minority and swore that he was only 19 years of age, was admissible, but the result of that trial was inadmissible, as defendant was not bound thereby.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    2. Perjury (§ 32) — Evidence—Admissibility.
    In a perjury case, where defendant was charged with testifying falsely before the grand jury, the testimony of grand jurymen was admissible to show that defendant acted deliberately and willfully and did not testify through misapprehension or agitation.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    3. Criminal Law (§ 369) — Evidence—Other Offenses.
    Where defendant was on trial for perjury, evidence of other offenses committed by him in other counties, under different circumstances, and for which he had never been indicted, was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    4. Criminal Law (§ 338) — Evidence—Character of Defendant’s Father.
    Where, in a perjury case, defendant’s father was not a witness, it was error to admit evidence showing that he had left another county under suspicious circumstances.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.]
    5. Witnesses (§ 286) — Bedbrect Examination — Explanatory of Testimony on Cross-Examination.
    Where, in a perjury case, defendant, in questioning a witness as to having also appeared against a relative of his in the commissioners’ court, elicited the fact that other citizens had also appeared for the same purpose, it was not error to permit the state’s attorney on redirect to ask about these other citizens, though, if defendant’s question had related only to the witness, it would not.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 930, 994-999; Dec. Dig. § 286.]
    6. Criminal Law (§ 338) — Evidence—Character.
    In a prosecution for perjury, it was prejudicial error to admit evidence that defendant’s father, several years before, had stolen a log chain; the father not being a witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. JS 752, 753. 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.]
    7. Criminal Law (§ 596) — Continuance-Cumulative Evidence.
    In a first application for continuance in a perjury ease on the ground of absence of witnesses, the fact that the testimony of such witness was cumulative does not render the application insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    Appeal from District Court, Parker County; F. O. McKinsey, Judge.
    Walter Poulter was convicted of perjury, and he appeals.
    Beversed and remanded.
    Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, and Hood & Shadle, of Weather-ford, for appellant. C. E. Lane, Asst Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Bee. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   HABPEB, J.

Appellant was prosecuted and convicted of perjury, and his punishment assessed at two years’ confinement in the penitentiary.

It appears from the record that appellant’s brother, Ed Poulter, was sued in the justice court on a note, and he then filed a plea of minority and testified he was 19 years of age in March, 1911. The grand jury of Parker county, at the next term of the district court, was investigating the question of Ed Poulter’s age to determine whether or not it would indict him for perjury in connection with his testimony in the justice court when he swore he was only 19 years of age. Appellant was summoned before that body and testified that his brother, Ed Poul-ter, was born in 1892 or 1893, consequently not more than 19 years of age at the time Ed Poulter testified in the justice court. This testimony of appellant before the grand jury is the basis of the charge of perjury in this ease.

Mr. H. C. Shropshire was a material witness for the state; he having been the attorney for plaintiff in the suit in the justice court against Ed Poulter. The state proved by him that Ed Poulter testified in the justice court that he was only 19 years of age. There was no error in admitting this testimony, as it was incumbent upon the state to show that the grand jury was inquiring into an alleged violation of. the law at the time appellant testified before it. If the grand jury liad not been investigating an alleged violation of tbe law, tbe question asked appellant by tbe grand jury would not bave been as to a material matter. However, tbe fact that after Ed Poulter bad filed bis plea of infancy or minority, and testified be was only 19 years of age, tbe further fact that plaintiff withdrew bis announcement and the case was continued, and thereafter plaintiff recovered a judgment on tbe notes and foreclosure of tbe mortgage lien, was not admissible in this case, and neither was tbe judgment entry. This would and could but bave the tendency to show that tbe plea of minority was not true, and Ed Poulter was in fact 21 years old at tbe time. Whatever decision may bave been rendered in that case could not be binding on this appellant, as be was not a party to that suit, was not even a witness in tbe case. Of course tbe citation and tbe plea filed by Ed Poulter would be admissible as showing tbe issues involved and going to show tbe materiality of tbe testimony, but tbe result of tbe trial and tbe steps taken after Ed Poulter’s testimony as to this plea ought to have been excluded on objection of appellant. Neither can we see what purpose tbe introduction of tbe mortgage given by Ed Poulter would serve. In this case against Walter Poulter it is not a question of whether or not the plaintiff was entitled to recover judgment against Ed Poulter. The only part of tbe proceedings of tbe Ed Poul-ter suit in tbe justice court which would be admissible in this case, as hereinbefore stated, would be the citation in that suit, and this would show what issues were tendered by plaintiff. Then defendant’s plea showing what issues were tendered by him, bis testimony, or rather so much thereof as would show what be testified to in regard to bis age. Tbe merits of tbe justice court suit are not to be tried over in this case.

Tbe testimony of the grand jurymen was properly admitted, and these bills present no error. Tbe allegation in tbe indictment is that a suit was pending in justice court against Ed Poulter; that to avoid liability on tbe notes be entered a plea of minority and swore be was under 21 years of age, or only 19 'years; that tbe grand jury was investigating tbe truth of this testimony to determine whether or not to indict Ed Poulter for perjury; that, while making such investigation, appellant, Walter Poulter, was summoned before them and duly sworn and then testified his brother, Ed Poulter, was born 1892 or 1893. All tbe testimony of these grand jurymen was admissible to show that appellant acted deliberately and willfully in tbe matter, and that be did not testify through misapprehension or under agitation.

The bill of exceptions as to what Walter Poulter testified on cross-examination is not complete enough to bring that question before us on review, as only four questions and four answers are in the bill, and these would not show enough of tbe pro-I ceedings to enable us to pass on tbe matter. But, as tbe case will be reversed, we will say that, if it was an effort on tbe part of the-state to show that appellant had left another county under suspicious circumstances, the-testimony should not bave, been admitted. He was on trial for tbe offense of perjury in this case, and other offenses, if any be bad ever committed in other counties under different circumstances, and for which be had' never been prosecuted nor indicted, would not be admissible. Neither would tbe fact that his father had left Denton county at night and under suspicious circumstances be-admissible. His father was not a witness in-this' case. '

Tbe defendant -in cross-examination of' state’s witness Temple, to show bias, elicited; from tbe witness that be appeared before the-commissioners’ court to prevent John D. Poulter from getting a recommendation upon which to apply for license to practice law, and at tbe same time elicited tbe fact that a number of other citizens of Parker county also appeared for tbe same purpose. Under-such circumstances, it was not error to permit tbe state on redirect examination to ask tbe witness in regard to “these others” whom, defendant bad elicited bad appeared. If defendant on another trial narrows bis questions down to tbe witness Temple alone to attempt to show bis bias, then this testimony as to other “good citizens” also appearing would be inadmissible. But, if he makes bis-cross-examination as broad as on this trial, then there will be no error in admitting the-testimony on redirect examination.

It was also error to permit the state to-show by tbe witness Hardin that appellant’s father a number of years before bad taken Mr. Hardin’s log chain and denied having possession of it. Whether or not appellant’s father had stolen a log chain from Mr. Hardin would not be a legitimate inquiry in this case. He could not be held responsible for the acts and misconduct of all the members of bis family. His father was not a witness in his behalf in this case, and such testimony could and would be prejudicial to bis cause, for you cannot show that a man’s father was a thief without, to some extent at least, creating prejudice against him. If tbe purpose of tbe state was to tie tbe witness’ memory to some circumstance after a rigid cross-examination, be might be permitted to state that be went to Mr. Poulter’s to see about a log chain that was at bis bouse, but not state facts which would tend to show that appellant’s father had stolen the chain.

There are a number of other matters presented, but we do not deem it necessary to discuss them. The indictment is not subject to the objections made, and there is no variance in the proof and the material allegations contained in the indictment, as contended by appellant.

The only other matter called to our attention which would present error is tbe application for a continuance. This being the first application, the fact that Mr. Moran’s testimony -would be cumulative of that of -other witnesses who did appear and testify would not render the first application insufficient in law. The application states this witness would testify to facts material to the real issue in the case, the age of appellant’s brother at the time appellant testified before the grand jury, and that the testimony of Mr. Moran would tend to show that what he testified was true. There are other witnesses named in the application for continuance, but, as this matter will not likely be presented on another trial, we will not discuss it further.

The judgment is reversed, and the cause is remanded.  