
    MELTON v. STATE.
    (No. 10450.)
    (Court of Criminal Appeals of Texas.
    March 2, 1927.)
    1. Indictment and information <&wkey;83 — Prosecution of accomplice to offense of false swearing held properly brought, under general law as applied to accomplices, under statute of faise swearing (Pen. Code 1925, arts. 310, 315).
    Prosecution held properly brought for being accomplice to offense of false swearing, under general law as applied to accomplices, under statute of false swearing, Pen. Code 1925, art. 310, instead of article 315, on subornation of false swearing, notwithstanding rule that applicable special statutes control general statutes pertaining to same subject-matter.
    2. Criminal law <&wkey;l092(ll) — On objection to qualification on bill of exceptions, court must refuse such bill, or it will be considered without qualification.
    Where appellant objects to trial court’s qualifications on bill of exception »in criminal case, it is duty of court to refuse such bill and prepare and file bill of its own, and, if it fails to do so, appellant’s bill must be considered without qualification.
    3. Jury <&wkey;95 — In prosecution of accomplice to offense of false swearing, it was error to force defendant to select jurors who had sat in principal’s case.
    In prosecution for being accomplice to offense of false swearing, it was error to force defendant to select jurors who had sat in’principal’s case, where testimony was same and had been found adversely to his defense.
    4. Criminal law <&wkey;742(2) — In prosecution of accomplice to offense of false swearing, whether state’s witness was accomplice held for jury.
    In prosecution for being accomplice to offense of false swearing, whether witness for state was accomplice held for jury, where he had accompanied principal on trip when false affidavit was made.
    Commissioners’ Decision.
    Appeal from District Court, Hunt County; J. M. Melson, Judge.
    Edgar Melton was convicted as an accomplice to the offense of false swearing, and he appeals.
    Reversed and remanded.
    Neyland & Neyland, of Greenville, and Marvin P. McCoy, of Dallas, 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.

Tlie appellant was convicted as an accomplice to tlie offense of false swearing, and liis punisliment assessed at 3 years in tlie penitentiary.

The record discloses that Francis Dungan made an affidavit before the deputy county clerk of Hunt county, under the assumed name of R. H. Hamilton, to the effect that Miss Ruthie Britton was 18 years of age, his purpose being to secure a marriage license in order that she and one Fred Van Slyke might marry, whereas, in truth and in fact, the said Miss Britton was under the age of 18 years. The appellant was indicted as an accomplice, it being alleged that he unlawfully and willfully advised, commanded, and encouraged the said Francis Dungan to commit said offense.

The record contains 12 bills of exception. Bills 3, 10, and 12 complain of the refusal of the court to quash the indictment and arrest the judgment herein, it being contended by appellant’s counsel that he was wrongfully indicted, under the general law as applied to an accomplice, under the statute of false swearing, article 310, P. C. 1925, and that in lieu thereof he should have been indicted under article 315, P. C. 1925, which states:

“Whoever shall designedly induce another to commit perjury or false swearing shall be punished as if lie had himself committed the crime.”

In other words, it is the contention of appellant’s counsel' that article 315, supra, on subornation of false swearing, is a special statute which would control the general law as applied to accomplices. We are unable to persuade ourselves to agree with this contention, although mindful of the fact that the rule is well established in this state that special statutes, when applicable, control general statutes pertaining to the same subject-matter. In Blakely v. State, 24 Tex. App. 616, 7 S. W. 233, 5 Am. St. Rep. 912, Judge White, in discussing the law as applied to that case, wherein the appellant was charged as an accessory to murder, in discussing article 315 on subornation of false swearing and perjury, stated:

“It is true that, under the facts disclosed, defendant might have been prosecuted and convicted under our statute for subornation of perjury (Penal Code, art. 199), but this fact did not destroy nor affect his relation to the murder as an accessory; it was simply a question with the prosecution as to which of the offenses he should be tried for.”

Under the doctrine announced in the Blakely Case, supra, and the facts as disclosed by this record, we are of the opinion that the court committed no error in overruling the motion to quash the indictment and refusing to arrest the judgment herein.

Bills 1, 2, and 4 complain of the refusal of the court to quash the jury panel, and of the court’s action in lecturing Francis Dungan before the jury panel, and of the refusal of the court to sustain appellant’s challenges for cause to three jurors who sat on the jury in the instant case, over his objection. It- is contended that 12 of the jurors from among whom the appellant had to select his jury sat in .the Dungan case and passed on practically the same facts that the state relied upon for a conviction in the instant case; that the court, in lecturing the said Francis Dungan before the jury panel as to his guilt and the seriousness of the crime that he had committed and the necessity for protecting the home, used language that was prejudicial to this appellant; and that after the court had overruled appellant’s motion to quash the panel, or continue the case until another jury could be obtained, the appellant exhausted his challenges and was forced to take three of the jurors who sat On the Dun-gan trial. The court attempts to qualify these bills, especially bill No. 4 relative to appellant being forced to take three of the jurors who sat on the Dungan trial, but said qualifications are over the objections and exceptions of the appellant, and for that reason iwe are Unable to consider same and we are forced, under the decisions of this court, to consider the bills without the qualifications thereto. This court has held many times that, where the appellant objects to the trial court’s qualification on a bill of exception, it is the duty of the trial court to refuse said bill and-prepare and file a bill of his own, and, in the event he fails to do so; then appellant’s bill will be considered without the qualification. Lilley v. State, 100 Tex. Cr. R. 371, 273 S. W. 270; Peasley v. State, 102 Tex. Cr. R. 492, 278 S. W. 440; Dowd v. State, 104 Tex. Cr. R. 480, 284 S. W. 592. We think the court was in error in forcing the appellant to select jurors who had sat on the Dungan case and who had there heard the same testimony introduced against the appellant in the instant case, and who had found adversely to his defense. This, in our judgment, is not furnishing the appellant with a fair and impartial, jury, as contemplated by the Constitution and laws of this state. Hanes v. State (Tex. Cr. App.) 107 S. W. 818.

Bills 7 and 8 complain of the refusal of the court to -submit to the jury the issue as to whether or npt the witness Roberts was an accomplice, and to charge the law applicable thereto. Appellant contends that the record shows that said witness was an accomplice, and the court erred in failing to submit that issue in his general charge,and in refusing to give appellant’s special charge requested on this issue. The record discloses that the witness Roberts testified to damaging statements against the appellant. It is further shown that Roberts, Van Slyke, Dungan, and others rode in the same -car to Greenville; that when they reached Qreen-ville, Roberts went with Van Slyke and Dun-gan to the county clerk’s office to obtain the license, and while the other two went in said office, Roberts remained on the outside; that as soon as Dungan and Van Slyke came out with the license they showed Roberts an envelope and told him they had “got it”; and that immediately afterwards Roberts and Dungan left for Dallas. This witness also testified, on cross-examination, that he took in his hand a note purporting to be from the father and mother of -the girl, that he read it, and that he and the others in the car discussed the note while en rpute to Greenville. He further testified that he sat there and talked along with them, and asked them about the license, and what the girl’s name was, and that he wanted to see what they had to do. It is the contention of the appellant that the witness Roberts, knowing the purpose and intent of all the parties, including Dungan and Van Slyke, and participating in the conversation, and going with them to the county clerk’s office and waiting outside while they procured the license, was an accomplice by reason of encouraging and assisting in the commission of the offense, or at least that the issue was raised and the jury should have been permitted to pass upon it. We are of the opinion that the court should have submitted this issue for the determination of. the jury. Smith v. State, 89 Tex. Cr. R. 145, 229 S. W. 523.

There are other bills of exception complaining of the closing argument of the district attorney to the jury, but, in view of the disposition we have made of this case and the fact that the same questions will probably not arise again upon another trial, we are of the opinion that it is not necessary to discuss said bills at this time.

For the errors above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, 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. 
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