
    TIMMINS v. STATE.
    (No. 4502.)
    (Court of Criminal Appeals of Texas.
    June 29, 1917.
    Rehearing Denied Jan. 16, 1918.)
    x. Perjury <&wkey;19(2) — Indictment — Sheet-GIENC Y.
    An indictment for perjury committed be-rore a grand jury investigating a charge of illegal liquor selling, alleging a prior election in which liquor selling was prohibited in the county, was not bad for omitting specifically to allege that liquor selling was unlawful at the date of the investigation.
    2. Perjury t&wkey;19(2) — Indictment — Suiti- ■ CIENCY.
    An indictment for perjury committed before a grand jury investigating a charge of illegal liquor selling in a certain county was not defective in failing to show that the testimony or inquiry was confined to transactions taking place in that county.
    3. Perjury <&wkey;34(3) — Evidence— Corroboration.
    Falsity of accused’s testimony before grand jury held established by two credible witnesses or one credible witness strongly corroborated as required by Vernon’s Ann. Code Or. Proc. 1916, art. 806.
    4. Criminal Law <&wkey;742(l) — Perjury <&wkey; 34(4) — Evidence—Corroboration.
    In prosecution for perjury committed before grand jury investigating charge of illegal liquor selling, where there was no proof of agreement making the person against whom the charge was made immune from punishment in consideration of testimony against accused, but merely evidence from which such an understanding could be inferred such a person was a competent witness, within Vernon’s Ann. Code Or. Proc. 1916, art. 806, requiring two credible witnesses, or one credible witness strongly corroborated; and his credibility was for the jury.
    
      5. Witnesses <&wkey;373 — Impeaching—Predicate.
    In prosecution for perjury, evidence impeaching state’s witness by showing agreement relative to immunity from prosecution on another charge in consideration of testimony against accused was inadmissible where no predicate had been laid by inquiry of such witness with reference to such agreement.
    6. Criminal Law <&wkey;417(3, 4) — Impeaching —Hearsay.
    In prosecution for perjury, refusal to permit accused to ask certain grand jurors on cross-examination if the district attorney had not informed them that, if they would rescind action against one charged with another offense, he would go in and testify against ac-. cused, was not error ; the excluded evidence not purporting to be statements by the witness sought to be impeached, but hearsay information obtained by the grand jurors from the district attorney.
    7. Criminal Law <&wkey;829(17) — Instructions —Intoxication.
    In perjury trial, refusal of special charge to acquit if finding that accused because of intoxication was unable to remember the facts with reference' to transactions testified to by him before the grand jury, on which testimony the prosecution was based, was not error, where the court elsewhere charged that a false statement made through inadvertence or under agitation or by mistake was not perjury, and directed acquittal if finding accused was so intoxicated he did not remember the transaction.
    Appeal from District Court, Jones County; John B. Thomas, Judge.
    W. A. Timmins was convicted of perjury, and appeals.
    Affirmed.
    J. L. Cearley and E. T. Brooks, both of An-son, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a conviction for perjury. and sentence of two years’ confinement in the penitentiary.

It was shown that the sale of intoxicating liquors was prohibited in Jones county by virtue of an election duly held and result published in June, 1914. That appellant was a witness before a duly organized grand jury of the Thirty-Ninth judicial district of Texas, sitting in Jones county.

The state’s witness, Estes, claimed to have seen appellant in company with Louis Haley about the time the evening train came in, and that shortly afterward he saw each of them in possession of a bottle of whisky; that W. O. Reese, a news butcher, got off the train when it arrived, and shortly afterwards was arrested with several pints of whisky in his grip.

Louis Haley testified that on the occasion in question he and appellant went to the depot, waited until the train came in, and shortly thereafter, at appellant’s suggestion, walked a short distance on the railroad and came up with Reese. He said: “I did not know Reese at that time, but understood that was him. I have seen him, and know him when I see him.” He claimed that he bought from Reese a pint of whisky and gave him a dollar for it, and that appellant at the same time got a quart; that he saw the whisky handed to appellant, and saw something-changed, though he could not swear it was money, but that appellant said this whisky cost him $1.50 a quart, and witness claimed they went to appellant’s place of business and drank whisky out of each of the bottles. On cross-examination he said that it was dark, and that he could tell only that the man from whom the whisky was gotten was a white man, and that he saw him hand appellant something in a bottle.

It was shown that the grand jury was investigating a charge against W. C. Reese for unlawfully selling whisky in Jones county, and that appellant, a witness duly sworn before the grand jury in session, testified that about the time alleged in the indictment, November 1, 1916, he did not buy any whisky from W. O. Reese, and did not see Haley do so; that he had never bought any whisky from Reese, and never saw Haley do so. This testimony seems to have been verbal, and also reduced to writing. His testimony in substance was proved by two of the grand jurors, and W. O. Reese testified that about November 1, 1916, he saw appellant and Haley at the depot, and that he let Haley have a pint of whisky and Timmins have a pint or quart; that Haley paid him a dollar for the pint, arid that Timmins paid him a dollar and*owed him a dollar; that he sold this defendant several times, these transae--tions taking place in Stamford, in Jones county. He testified that he was arrested the same night, and had in his possession seven or nine pints of whisky. He was uncertain as to the exact daté of the transaction, but said it was in the fall of 1916, along about November 1st. He was not acquainted with Haley at the time, but he had let'him have the whisky, and learned since who he was. There was evidence that appellant was drunk about the time that Reese was arrested. His wife testified she thought the occurrence took place about the 16th of October, and that when appellant was intoxicated he could not remember things that transpired.

Appellant insists that the indictment is fatally defective,, and that the evidence is insufficient to support the conviction. As to the indictment there are several criticisms. Two of them only present questions worthy of note. One of these grows out of the fact that the indictment charged that the election in which the sale of intoxicating liquors was prohibited in Jones county took place on the 6th of June, 1914, and that there was an absence of specific allegation that the sale of intoxicating liquors was unlawful in Jones county at the time of the investigation before the grand jury in January, 1917. The-effect of this is to assert that the indictment was bad because it fails to negative the fact that the prohibition of the sale of intoxicating liquors had been repealed by a subsequent election.

We do not regard this position tenable.. For decisions on the subject see Branch’s. Ann. P. 0. p. 697, § 1233; also Vernon’s P.. O. art. 597, pp. 311 and 312; Williams v. State, 37 Tex. Cr. R. 241, 39 S. W. 664; Wade v. State, 53 Tex. Cr. R. 184, 109 S. W. 191; Green v. State, 62 Tex. Cr. R. 346, 137 S. W. 126; Mayo v. State, 62 Tex. Cr. R. 110, 136 S. W. 790; Jones v. State, 70 Tex. Cr. R. 343, 156 S. W. 1191; Johnson v. State, 70. Tex. Cr. R. 582, 157 -S. W. 1196; Nobles v. State, 71 Tex. Cr. R. 121, 158 S. W. 1133.

The indictment contains also the following-allegations:

“Whereupon it then and there became and was a material inquiry before said grand jury and necessary for the due administration of the-criminal law of said state, and for the ends of public justice, whether in said county and state one W. 0. Reese did make a sale of intoxicating liquor to the said W. A. Timmins on or about November 1, 1916, in Jones county, Tex., and within the last two years preceding the-said date first above mentioned, to wit, January 4, 1917, and whether a sale of intoxicating liquors was then and there made to one Louis. Haley in the presence of the said W. A. Tim-mins by the said W. O. Reese on or about November 1, 1916, and within the last two years, next preceding the said date first above mentioned, to wit, January 4, 1917. And the said W. A. Timmins did on or about the day and date first above named, to wit, January 4, 1917, in said county and state, before and to. said grand jury, under the sanction of said oath, administered to him as aforesaid, deliberately and willfully state and testify that he,, the said W. A. Timmins, did not buy any whis-ky op or about November 1, 1916, and within the last two years next preceding the said date,, to wit, January 4, 1917, from W. O. Reese; which said statement and testimony was then and there material to the issue and to the in-quix-y aforesaid, and which said statement and. testimony was then and there deliberately and willfully made, and was deliberately and willfully false, as he, the said W. A. Timmins, then and there well knew; whereas, in truth and in fact, the said W. A. Timmins, on or-about the 1st day of November, 1916, and with-in two years next preceding the date above mentioned, to wit, January 4, 1917, did purchase whisky and intoxicating liquors from the said W. O. Reese in said Jones county, Tex., and the said W. A. Timmins did on or about the day and date first above named, to wit, January 4, 1917, in said county and state, before and to said grand .jury, under the sanction of said oath administered to him as aforesaid, deliberately and willfully state and testify that he, the said W. A. Timmins, was not present and did not see the said Louis Haley buy any whisky from the said W. O. Reese on or about November 1, 1916, and within the last two years next preceding the date above mentioned, to wit, January 4, 1917, which said statement and testimony was then and there material to the issue and to the inquiry aforesaid, and which said statement and testimony was then and there deliberately and willfully made, and was deliberately and willfully false, as he, the said W. A. Timmins, then and there well knew, whereas, in truth and in fact, the said W. A. Timmins did see and was then and there present when the said W. O. Reese did sell intoxicating liquors and whisky to one Louis Haley, on or about November 1, 1916, and within two years next preceding January 4, 1917,. against the peace and dignity of the state.”

The other assignment to be noted is that which grows out of the contention that the allegation that appellant did deliberately and willfully state and testify that the said W. A. Timmins did not buy any whisky on or about November 1, 1916, and within the last two years next preceding said date, to wit, January 4, 1917, from W. C. Reese, and denied he was present or had any knowledge of the sale of intoxicating liquors by Reese to Haley, the appellant’s contention in substance being that this inquiry was not by its terms confined to transactions taking place in Jones county. This direct question was before this court in McDonough v. State, 47 Tex. Cr. R. 227, 84 S. W. 594, 122 Am. St. Rep. 084, and decided against appellant’s contention. The case mentioned was followed 'in Scott’s Case, 72 Tex. Cr. R. 26, 160 S. W. 961, in a well-considered opinion by Judge Davidson. The appellant insists that the conviction ought not to stand because the quantum of evidence requisite under article S06, Vernon’s O. O. P., was not produced on the trial. The specific contention of appellant is that the rule requiring the falsity of his testimony before the grand jury to be established by two credible witnesses or one credible witness strongly corroborated by other evidence was not complied with. The evidence of the witness Haley and that of Reese was, in our judgment, sufiicient to show that appellant bought whisky from Reese, and that he saw Haley do so. In addition to their direct evidence, there are circumstances detailed by other witnesses, among them the witness Estes, whose testimony is' stated in part above, and who gave additional testimony from which it appears that he was engaged in an effort to discover sales of whisky, and that appellant and Haley came to a house while the witness Estes was sitting under the edge of it; that this occurred shortly after the time that the train came in on which from other testimony it is indicated that Reese came in and brought the whisky. He says they came up and sat down on the steps, pulled out a bottle, and were drinking, talking about the whisky; said they were glad to get it; just about give out. They struck a match and looked at the brand, and Haley opened his pint, and they drank out of it. They each had a bottle. We find testimony that appellant was drinking on the evening in question, but appellant’s ’ contention involves the proposition that Reese was not a credible witness, and that the circumstances are not sufficient to corroborate Haley. The facts upon which appellant tries to show that Reese was not a credible witness is the fact that he had been charged with the sale of whisky and the suggestion that he had been tendered immunity from prosecution in consideration of his giving testimony against the appellant. There was no proof of an agreement making Reese immune from punishment, though there is evidence from which the inference could be drawn, that there was such an understanding. The witness Reese was a competent witness, and his credibility was for the jury. Anderson v. State, 56 Tex. Cr. R. 360, 120 S. W. 462; Branch’s Ann. P. O. p. 478, § 847, and cases cited. Some exceptions appear to the refusal of the court to permit the defendant to ask members of the grand jury on cross-examination if the district attorney had not informed them that, if they would rescind their action against Reese, he would go in and testify against appellant. Any agreement reached on the subject would have been proper to use to impeach Reese, but a predicate for so doing was necessary, and the bills in question fail to show any predicate was laid by inquiry of Reese with reference to his-agreement with the district attorney, and, further, the evidence excluded does not purport to be statements by Reese, but hearsay information obtained by members of the grand jury from the district attorney. They do not show any error.

A special charge was requested instructing acquittal if the jury found that appellant by reason of intoxication- was unable to remember the facts with reference to the transactions testified to by him before the grand jury. The charge of the court appears to have sufficiently' guarded appellant’s theory in this respect. In the second ■paragraph he told the jury that a false statement made through inadvertence or under agitation or by mistake was not perjury. In the fourth and fifth paragraphs, in defining the terms “deliberately” and “wiljfully,” and in the twelfth paragraph, the jury was told to acquit if they found the appellant was so intoxicated that he did not remember- the transaction. Such other special charges as were -requested were embodied ■ in the main charges.

Failing to find any reversible error in tbe record, tbe judgment of tbe lower court is affirmed. 
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