
    MUSICK v. STATE.
    (No. 10581.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1927.
    Rehearing Denied March 9, 1927.)
    I.Criminal law <@=>l 169(2) — Admitting testimony at former trial for perjury in divorce proceedings that citation therein was by publication was, if error, harmless after introduction of petition and affidavit for citation.
    In prosecution for perjury, admitting testimony of deceased judge given at former trial that citation in divorce proceeding in which alleged perjury was committed was by publication, and that it was civil suit, and issues were joined therein, was, if error, harmless, in view of fact that petition and affidavit for citation by publication were afterward introduced.
    2. Perjury <@=332(1) — Admitting affidavit for citation by publication in divorce proceedings in which alleged perjury was committed was not error.
    In prosecution for perjury, admitting defendant’s affidavit for citation by publication in divorce proceedings in which alleged perjury was committed was not error.
    3. Criminal law <@=ol 169(12) — In prosecution for perjury, admitting part of written confession was not prejudicial, in view of same evidence from other witnesses without objection.
    In prosecution for perjury in divorce' action, admitting written confession stating defendant had three year old son, and that shortly after he left wife, he lived in adultery with another woman, was not prejudicial, in view of same character of evidence from other witnesses without objection.
    4. Criminal law <@=3'l 169(2) — In prosecution for perjury, admitting testimony by defendant’s wife was not prejudicial, where same testimony was given by others.
    In prosecution for perjury in divorce suit through defendant’s false testimony that he did not know whereabouts of wife, admitting testimony by defendant’s wife as to her residence,, where court, on discovery that judgment in divorce proceedings had been set aside, refused to permit state to question her further, was not error, in view of fact that no request was made to withdraw such testimony from jury, and in view of abundant evidence from other sources as to facts testified to by wife.
    5. Criminal law <®=>1169(2) — In prosecution for perjury in divorce proceedings, admitting in evidence judgment of divorce was not prejudicial, in view of same testimony by other witnesses.
    In prosecution for perjury in divorce proceedings, permitting state to introduce judgment of ijivorce was not prejudicial, in view that matters in judgment had been testified to by other witnesses without objection, objection that it was prejudicial and immaterial being too general.
    6. Criminal law <©=31173(1) — Refusal to instruct to disregard testimony that witness was appointed to represent defendant cited by publication in divorce proceedings on which perjury prosecution was based was not error, in view of other testimony.
    In prosecution for perjury in divorce proceedings, refusal to instruct jury not to consider testimony of witness that he was appointed to represent defendant in divorce proceedings cited by publication on ground that minutes of court were best evidence of appointment was not error, in view that testimony to same effect was in record without objection.
    
      7. Criminal law <3=5 1091 (5) — Bill of exception for exclusion of witness’ testimony, not showing what defendant expected .to prove by such witness, held defective.
    On appeal from conviction of perjury in divorce proceedings, bill of exception for refusal to permit proof by defendant’s attorney in divorce proceedings as to what advice he gave defendant,’not showing what defendant expected to prove by such witness, did not show error.
    8. Criminal law <3=1169(11) — In prosecution for perjury in divorce proceedings, permitting cross-examination of defendant as to living in adultery was not error, in view of other testimony.
    In prosecution 'for perjury in divorce proceedings, permitting state to prove by cross-examination of defendant that he was living in adultery with another woman pending divorce suit against wife was not error, in view of other testimony to same effect introduced without objection; it being admissible to show motive and to rebut defendant’s contention that divorce proceedings were based on wife’s misconduct, especially in view of defendant’s marriage to woman with whom he had lived soon after divorce.
    9. Witnesses <3=392 (I) — Reading on cross-examination statement of facts signed by witness, and introducing it in evidence, was permissible for impeachment.
    In prosecution for perjury in divorce suit by false testimony as to defendant’s knowledge of whereabouts of his wife, permitting state on cross-examining defendant’s attorney to read from statement of facts prepared and signed by him to effect that defendant testified that he had not seen wife for several years and did not know where she was, and permitting it to be introduced to jury, was permissible for impeachment purposes.
    10. Criminal law <3=1 169(12), f f70</^(2)-— Permitting state to cross-examine defendant as to admission of perjury, answered in negative, held not error, in view of other testimony.
    In prosecution for perjury in divorce proceedings, permitting state to cross-examine defendant as to his admission after arrest that he had testified falsely, answered in negative, was not error, especially in view of same character of testimony in defendant’s written confession introduced by state.
    11. Criminal law <3=1 l70i/2(2) — Attempt to elicit improper testimony answered in negative is ordinarily not error.
    In criminal case attempt to elicit improper testimony to which negative answer is given is not ordinarily error.
    On Motion for Rehearing.
    12. Criminal law <3=1038(3), 1056(1) — In absence of request or exception, failure to instruct on proof of perjury is not available on appeal (Code Cr. Proc. 1925, art. 666).
    In absence of request or exception made at trial, failure of court to instruct jury on quantum of proof required to establish perjury is not available; Code Or. Proc. 1925, art. 666, requiring such omission to be called to trial court’s attention before charge is read to jury.
    13. Perjury <@=34(6)~Corroborative evidence in defendant’s confession held sufficient to uphold conviction of perjury in divorce proceedings.
    In prosecution for perjury in divorce proceedings through false statement that defendant did not know whereabouts of wife, corroborating evidence in defendant’s confession held sufficient to comply with statute as to quantum of proof required.
    14. Perjury <3=533(1) — In prosecution for perjury in divorce proceedings, evidence that defendant knew where his wife was held to sustain conviction.
    In prosecution for perjury in divorce proceedings, evidence that defendant knew where his wife was at time of suit, contrary to his testimony, held sufficient to sustain conviction.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    Y. Y. Musick was convicted of perjury, and he appeals.
    Affirmed.
    Harry Myers, of Eort-Worth, for appellant. Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., ■ of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted of perjury, and his punishment assessed at 3 years in the penitentiary. This is the second appeal of this case to this court. The former appeal will be found in 100 Tex. Cr. R. 590, 272 S. W. 170, where a sufficient statement of the facts is given.

The record contains 24 bills of exception, the number of which precludes a separate consideration of each bill. Bill No. 1 complains of the refusal of the court to sustain appellant’s motion to quash the indictment. There is no error shown in the ruling of the court on this issue.

Bills Nos. 2, 3, 4, and 5 complain of the action of the court in permitting the state to reproduce the testimony of Judge Terrell, deceased, given on the former trial, to the effect that the citation in the divorce proceedings between áppellant and his wife was by publication, and that same was a civil suit and the issues were joined therein; appellant’s contention being that said testimony was not the best evidence. The record discloses that the petition and affidavit for citation by publication were afterwards introduced in evidence, which would render the evidence complained of in this bill harmless, even if the admission thereof was error.

Bill No. 6 complains of the action of the court in permitting the state to introduce the affidavit of appellant for citation by publication. There is no merit in this contention, and if any error were shown same would become harmless on account of other testimony of the same character being introduced without objection. Campbell v. State, 89 Tex. Cr. R. 243, 230 S. W. 695; Flores v. State, 89 Tex. Cr. R. 506, 231 S. W. 786; Emmons v. State, 100 Tex. Cr. R. 264, 273 S. W. 253.

Bills 7, 8, and 9 complain of the action of the court in permitting the state to introduce in evidence the written confession of the appellant, and especially that portion of same stating that appellant had a hoy about 3 years old, and that shortly after he left his wife at Wichita Rails he began living in adultery with a woman by the name of Warren; the objection being that said portions of the confession were prejudicial and immaterial. The same character of evidence Tvas introduced from other witnesses without objection, and what we have said with reference to bills 2, 3, 4, and 5 fully applies to these bills.

Bill No. 10 complains of the action of the court in permitting the state to prove by appellant’s wife that she had lived in Wichita Ralls for 10 years, with the exception of 2 years when she lived in the town of Bowie, and that the appellant was her husband. This bill discloses that, as soon as this witness testified that she was the wife of appellant, the court, upon inquiry of said witness, discovered that the judgment in the divorce proceedings granted appellant by Judge Terrell had afterwards been set aside and refused to permit the state to interrogate said witness further. No request was made to withdraw this testimony from the jury. This bill, as presented, shows no error. (There was an abundance of testimony from other sources, introduced without objection, as to the residence of the appellant’s wife and to the same effect as testified to by her.

Bill No. 12 complains of the action of the court in permitting the state to introduce the judgment in the divorce proceedings between appellant and his wife wherein the divorce was granted by Judge Terrell, deceased, to the , appellant; the grounds of objection being that same was prejudicial and immaterial. This bill, as presented, shows no error. The matters set out in said judgment were fully testified to by other witnesses, without objection, and, if any error was committed in the admission of same, it was harmless. The appellant’s objection was not to any particular portion of said judgment and was too general. See Spearman v. State, 68 Tex. Cr. R. 449, 152 S. W. 915, 44 L. R. A. (N. S.) 243.

Bill No. 14 complains of the refusal of the court to instruct the jury not to consider the testimony of the appellant’s witness Ruller to the effect that he was appointed by the court to represent the defendant cited by publication in the divorce proceedings; appellant contending that the order on the minutes of the court would be the best evidence of his appointment. Other testimony to the same effect as that complained of in this bill is in the record without objection, and there is no error shown in this bill. What we have said with reference to bill 14 fully applies to bill 15. ■

Bill 17 complains of the refusal of the court to permit appellant 'to prove by the attorney, C. H. Rogers, who represented him in the divorce proceedings, what advice or counsel the witness gave to the appellant relative to the divorce suit in question. This bill is defective, in that it fails to show what the appellant expected to prove by said witness. This court has repeatedly held that such bills will not he considered, where the court cannot determine from the bill itself the supposed error complained of. Hill v. State, 89 Tex. Cr. R. 450, 230 S. W. 1005; Thompson v. State, 90 Tex. Cr. R. 15, 234 S. W. 401; Nugent v. State, 101 Tex. Cr. R. 86, 273 S. W. 599.

Bill No. 19 complains of the action of the court in permitting the state to prove by appellant on cross-examination that he was living in adultery with Ina Warren in Rort Worth during the pendency of the divorce suit against his wife. There is no error shown in this hill. There was other testimony to the same effect introduced in evidence without objection thereto, and besides, under the facts in this case, this testimony was admissible to show motive, and to rebut appellant’s contention that the divorce proceedings were based on the misconduct of his wife, and especially in view of appellant’s marriage to said Ina Warren soon after the divorce was granted.

Bills 18 and 21 complain of the action of the court in permitting the state, on cross-examination of the appellant’s witness O. H. Rogers, to read from the statement of facts prepared and signed by said Rogers in connection with the divorce proceedings; the statement being to the effect that the appellant testified therein that he had not seen his wife for several years and did not know where she was. Appellant also objected to the introduction of the statement of facts by the state in evidence to the jury. The appellant objected to said testimony because same involved hearsay acts and declarations not binding on him. In the former appeal, this court held that this evidence was admissible for impeachment purposes, but that the court should limit same to the purposes for which it was introduced. In the instant case the trial court followed the direction of this court in the former appeal, and consequently no error is shown in this bill.

Bill 20 complains of the action of the court in permitting the state, on cross-examination of the appellant, to ask him if it were not a fact that, at the time he was arrested and brought to the courthouse and saw his wife, he broke down, and admitted the whole thing, and stated that he lied in order to get a divorce and marry Ina Warren, all of which was answered in the negative by the appellant. This court holds that, where improper testimony is attempted to be elicited and a negative answer is given, same ordinarily is not error. Ard v. State, 101 Tex. Cr. R. 545, 276 S. W. 263. However, the same character of testimony sought to be elicited from the appellant was embraced in appellant’s written confession which was introduced by the state in evidence to the jury.

We have carefully examined the entire record, and, failing to find any reversible error therein, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the .court.

On Motion for Rehearing.

MORROW, P. J.

In the absence of a request or exception made at the time of the trial, the failure of the court to instruct the jury upon the quantum of proof required to establish the offense of perjury is not available upon appeal. The precedents cited by the appellant upon the subject are controlled by the statute as it formerly existed. Under the present statute (article 666, C. C. P. 1925), an omission in the charge of the nature mentioned is waived unless the trial court’s attention is drawn to it before the charge is read to the jury, gee collation of authorities in 2 Vernon’s Tex. Ann. Code Civ. Proc. 1925, p. 328, note 58. Also Medford v. State, 86 Tex. Cr. R. 237, 216 S. W. 175; Joiner v. State, 89 Tex. Cr. R. 408, 232 S. W. 333; Ardry v. State, 90 Tex. Cr. R. 167, 233 S. W. 838; Howard v. State, 90 Tex. Cr. R. 164, 233 S. W. 847; and numerous other cases collated in the reference made above.

The fault of which complaint is made, that is, the absence of proof of perjury by two credible witnesses or one credible witness strongly corroborated by other evidence as to the falsity of the statement of the accused under oath, would be available on the complaint of the insufficiency of the evidence. However, in the present case, the corroborating evidence embraced in the appellant’s confession is sufficient to comply with the statute. See Butler v. State, 36 Tex. Cr. R. 483, 38 S. W. 46, and other cases collated in Vernon’s Tex. C. C. P. 1925, p. 803, note 4.

Appellant insists that in the treatment of bill of exceptions No. 10 in the original opinion this court was in error. The false testimony upon which the indictment is based is that, on the trial of a suit for divorce in the district court of Tarrant county in which the appellant was plaintiff and Grace Musiek was defendant, he falsely testified as follows:

“I have resided in Tarrant county for 3 years just before this suit. I have not seen my wife for several years, and do not know where she is. I tried to find out, but no one seems to know. She was very cruel to me, and often called me vicious names. One night when I came home from work I saw my wife get into an automobile with some other men and drive away.”

In the written confession which is found in the statement of facts, appellant said:

“I left my wife in Wichita Palls on the night of March 3, 1923, who was at that time, living at 304 Elm street, where we had been living for something over a year. * * * She has a father and three brothers living in Wichita Palls, Tex.”

In his confession he makes it clear that a few days after leaving Wichita Palls he came to Port Worth and was employed in a dry goods store; that he became enamored with a woman who worked in the store; that on the 14th day of April he sought the advice of an attorney about a divorce from his wife, and on the 27th of April he filed his petition for a divorce. He also stated in the confession that he had last seen his wife in Wichita Palls on March 3, 1923, and had had frequent letters from her since that time and up to the time of the divorce, at which time he gave the testimony upon which the prosecution is founded.

L. P. Miller testified that he had resided in Wichita Palls for 15 years prior to December, 1923, when he moved to Vernon, his present residence; that Grace E. Musiek was his sister ; that she had lived in Wichita Palls during the years 1922 and 1923; that he boarded with the family and had seen the appellant there during the spring of 1923 at his home where he and his wife lived.

The fact that the appellant’s wife resided in Wichita Palls was not controverted on the trial further than that the appellant testified that at the time his divorce was obtained he left Wichita Palls and that at that time he did not know the whereabouts of his wife, Grace Musiek. The evidence shows that after she left Wichita Palls she went to Bowie, which was in Montague county, Tex. There was much other evidence in the appellant’s testimony showing that the place of residence of his wife was in Wichita Palls, and that he was in communication with her; that he also knew the place of residence of her relatives, including her brother in Wichita Palls. He stated that he had written her some letters which she had not answered. As the record appears, we think that no harmful error was committed in the matter of which complaint is made in bill No. 10.

The other points raised in the motion for rehearing have received attention on the'original submission.

The motion is overruled. 
      <@saFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
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