
    BROWN v. STATE.
    (No. 8718.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1925.)
    1. Criminal law <§==>407(1), 720(7) — Inquiry and argument based on accused’s silence after arrest held prejudicial.
    In a prosecution for perjury, where accused testified as' to fleeing from officers because he thought they were robbers, because of which he threw away a pocket book, held, it was prejudicial to elicit from defendant that he remained silent alter arrest as to throwing of pocket book, and to base argument to jury thereon.
    2. Criminal law <§=>369(14) — In prosecution for perjury, proof of trial of defendant for transporting liquors improper.
    In prosecution for perjury, held, it would be improper to make proof of defendant’s trial on charge of transporting liquor.
    3. Criminal law <§=>1163(6) — Where jury receives damaging evidence after retirement, presumption of injury obtains, and burden Is on state to rebut such presumption.
    Where, after retirement, jury receives other evidence damaging to accused, presumption of injury to accused obtains, and burden rests on state to rebut same.
    4. Criminal law <§=>925¡/2(3) — New trial required, where jury, after retirement, improperly received evidence and used same.
    In prosecution for perjury, held, that motion for new trial, under Code Cr. Proc. 1925, art. 753 (Code Cr. Proc. 1911, art. 837), should have been granted, where it was shown that after jury’s retirement one of jury improperly imparted to others that accused had been coh-victed of'transporting liquor, and it was shown that on basis .of this jurors were induced to vote for conviction on ground that sentence for perjury would be concurrent with that for transportation of liquor.
    5. Criminal law <§=>957(5) — Rule that jurors cannot impeach verdict inapplicable, where improper evidence received and used by jury after retirement.
    The rule that jury cannot impeach its verdict applies, where they base their verdict on erroneous judgment indulged in with reference to • legitimate evidence, but is inapplicable, where it was shown that improper evidence was received and used by jury after retirement to prejudice of accused.
    6. Perjury <§=»37(4) — Court properly instructed that conviction could not be had except on testimony of two credible witnesses, or one credible witness strongly corroborated; “credible witness.”
    In a prosecution for perjury, held,.in view of Code Cr. Proc. 1925, art. 723 (Code Cr.' Proc. 1911, art. 806), that court properly instructed jury that a conviction could not be had for perjury, except on testimony of two credible witnesses, or one credible witness strongly corroborated by other evidence, and'“credible witness” was properly defined as one who, being competent to testify, was deemed worthy of belief.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Credible Witness.]
    7.-Perjury <§=>37(4) — Where state relied on two witnesses only, and one assailed, instruction required, if jury disbelieved assailed witness, they should acquit.
    Where state relies on two witnesses, and one witness is assailed, a requested instruction that, if jury disbelieve assailed witness,- they ■ should acquit should have been given.
    8. Perjury <§=>37(4) — Facts held to call for charge that, if jury entertained reasonable doubt as to credibility of assailed witness, they should find that issue in favor of defendant.
    In a perjury prosecution, where state relied on two witnesses, and credibility of one was assailed, but which witnesses were corroborated to some extent by others, held that facts of the case called for instruction that, if jury entertained reasonable doubt as to whether assailed witness was a credible one, they should find upon that issue for defendant.
    Appeal from District Court, Coleman County; J. O. Woodward, Judge.
    O. J. Brown was convicted of perjury, and be appeals.
    Reversed and remanded.
    Baker & Weatherred, of Coleman, for appellant.
    
      Tom Garrard, State’s Atty., and Grover 0. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for perjury, with punishment fixed at two years’ confinement in the penitentiary. This is the second appeal. The opinion upon the first will be found reported in 95 Tex. Cr. R. 343, 254 S. W. 995.

On the 2d day of November, 1921, appellant was tried upon an indictment charging him with the unlawful transportation of intoxicating liquor. He testified that he had no whisky in his automobile at the time he was arrested by the officers, nor during the time they were pursuing him in an effort to effect his arrest. Perjury was assigned upon these statements, it being averred that in fact he did have whisky in his car at the times mentioned.

He was convicted for the unlawful transportation of intoxicating liquor, an appeal taken, and the judgment in that case was reversed in an opinion delivered October 7, 1925. Brown v. State (Tex. Cr. App.) 275 S. W. 1069. No. 8717. One of the exact points upon which a reversal of that judgment was predicated also appears in the present record. Upon this trial for perjury appellant again testified that he had no whisky in his car at the time he was fleeing from the, officers nor when arrested, and explained his flight by stating that he did not know they were officers, but thought they were robbers; that during his flight he threw away his pocket book, containing some $45 in money. Upon cross-examination, over objection, the state elicited the admission that after he had been arrested and was being taken to jail by the officers he did not tell them about having thrown his purse away. The silence of appellant upon this subject was adverted to in the argument by the state’s attorney as contradictory of appellant’s explanation of his flight, arguing that the explanation now given upon the trial was untrue, or he would have told the officers about it after discovering they were not robbers. It was held in the other case that after his arrest the state could not avail itself of his silence as evidence of guilt, nor as destructive of the explanation of his conduct. The exact point is again presented here. The inquiry of appellant and the argument based upon his silence while under arrest must be held to have been erroneous. Thompson v. State, 88 Tex. Cr. R. 29, 224 S. W. 892; Ripley v. State, 58 Tex. Cr. R. 489; 126 S. W. 586; Johnson v. State (Tex. Cr. App.) 272 S. W. 783; Williams v. State (Tex. Cr. App.) 272 S. W. 783; Skirlock v. State (Tex. Cr. App.) 272 S. W. 782; Branch’s Ann. P. C. § 64.

Appellant based his motion for new trial in part upon article 753, C. C. P. (formerly article 837), providing that a new trial shall be granted “where the jury, after having retired to deliberate upon a ease, have received other testimony; or where a juror has conversed with any person in regard to the case.’’

It was averred in the motion that, after the jury retired, one of them imparted to others information that appellant’s trial for unlawfully transporting intoxicating liquor had resulted in a conviction, and his punishment therefor had been fixed at two years’ confinement in the penitentiary, and that this evidence improperly received was used to appellant’s injury. This allegation in the motion was supported by the affidavit of three jurors. All of the jurors were introduced either by the state or appellant upon the hearing of said motion. There is some conflict in their testimony as to the manner in which the matter came up, but the evidence leaves no doubt that the foreman of the jury informed some of the other jurors that appellant had been convicted in the very case out of which this prosecution for perjury grew and had been given a term of two years in the penitentiary. At the time this information was given the jury stood seven for conviction and five for acquittal. Some of the jurors claimed not to have heard the statement made by the foreman, nor the discussion which followed it, but do not say it could not have’occurred without their knowledge. All of them agree that at times during the deliberation the jurors were not all together, but were discussing the ease in separated groups. It further appears from the evidence that after this information of a conviction in the transportation case was communicated it was used by some of the jurors who were contending for conviction to induce those jurors who up to that time had been for acquittal to agree to a conviction in the present case upon the ground that, as appellant had already been convicted and received two years in the transporting.case, it would do him no injury to convict him upon the perjury charge and give him a like number of years, as the sentences could be served concurrently.

No evidence had been introduced before the jury showing the result of appellant’s trial upon the charge for unlawfully transporting liquor. It would have been improper to have made such proof. Brown v. State, 95 Tex. Cr. R. 343, 254 S. W. 995; James v. State, 88 Tex Cr. R. 656; 228 S. W. 941; Bennett v. State, 47 Tex. Cr. R. 52, 81 S. W. 30. This information which was not and could not have been legitimately placed before the jury was received by them while deliberating upon the case. One of the jurors seemed not to be satisfied with the information imparted by the foreman, and asked the officer in charge of the jury if it was a fact that appellant had been convicted upon the charge for transporting whisky and given two years in tlie penitentiary. The officer told him he thought it would not be proper to answer the question. The juror then told the officer the foreman said he had seen it published in the paper, whereupon the officer said he thought it had been so published. It has been held many times that, where, after retirement, the jury receives other evidence damaging to appellant, the presumption of injury will obtain, and that the burden rests upon the state to rebut such presumption. Hall v. State, 92 Tex. Cr. R. 1, 241 S. W. 154; Gilbert v. State, 85 Tex. Cr. R. 608, 215 S. W. 111; McDougal v. State, 81 Tex. Cr. R. 187, 194 S. W. 944, L. R. A. 1917E, 930, and many other authorities cited in those referred to.

In the present instance appellant established not only that evidence was improperly received by the jury, but went further than the law required of him, and also showed that it was used to his injury. Some of the jurors who had Been holding out for acquittal testified that they agreed to ■ the verdict in the present case, having doubt as to whether appellant was guilty on the perjury charge, on the theory that, he already having been convicted and received two years, it would do him no harm to render a verdict of guilty in the present case and assess a like punishment upon the assurance of other members of the jury that the two sentences would run concurrently. In overruling the motion for new trial on the point just discussed the court stated that in his judgment the evidence did not disclose any wrong done appellant, and further stated that he believed jurors should not be permitted to impeach their verdict in such manner. Upon the first reason assigned we have already expressed our opinion. On the second we think the learned trial judge misapprehended the application of the rule in not permitting jurors to impeach their verdict. We are not dealing with a case where' jurors attempt to show that they misapplied or misappropriated evidence which was legitimately before them, or where they based their verdict upon an erroneous argument indulge^ in by some of the jurors with reference to legitimate evidence: In such character of case it might be well said that jurors could not so impeach their verdict. Here, however, we have a case where improper evidence was received after the jury retired, and proof of the use made of it was for the purpose of showing that the evidence illegally obtained was appropriated to the hurt of accused.

The state relied largely upon the testimony of witnesses Taylor and Wester to substantiate ’the falsity of the testimony given by appellant upon which perjury was predicated; the evidence of said Wester and Taylor being corroborated to some extent by other witnesses. The court properly instructed the jury that a conviction for perjury could not be had except upon the testimony of two credible witnesses, or of one credible witness strongly corroborated by other evidence, and also properly defined a- credible witness as one who being competent to testify is deemed worthy of belief. Appellant made a direct attack upon the credibility of witness Wester, offering a number of witnesses who testified that his general reputation for truth and veracity was bad. The state supported him by witnesses who testified that his general • reputation in that respect was good. With this issue thus sharp-’ ly drawn appellant requested the court to instruct the jury, if they had a reasonable doubt as to the credibility of the witness Wester, they should find on said issue in favor of appellant. This charge was refused. It has been held that, where the credibility of one of the witnesses upon whom the state relies to establish perjury has been assailed, it is improper to refuse to instruct that, if the jury believe the witness in question is not credible, they should disregard his testimony. Smith v. State, 22 Tex. App. 196, 2 S. W. 542. Where the state relies on two Witnesses only, and one is assailed, it has also been held error to refuse an instruction that, if the jury believe the party so assailed was not a credible witness, they should acquit. Kitcken v. State, 29 Tex. App. 45, 14 S. W. 392.

Such charge as last referred to would not have been appropriate in the present case, because, as we understand the record, there was corroborating evidence to support the testimony of Taylor, even if the evidence of Wester had been disregarded. Appellant apparently recognized this to be true, and formulated his requested charge in language which informed the jury that, if under the evidence before them they entertained a reasonable doubt as to whether Wester was a credible witness, they should find upon that issue in favor of appellant. The facts of this case, we think, called for the giving of such charge or one of similar import. Such instruction .would not be called for in an ordinary case where a witness had been attacked by proof that his general reputation for truth and veracity was bad, but in a perjury prosecution, where the statute does not permit a conviction except upon the testimony of two credible witnesses, or one credible witness strongly corroborated by other evidence (article 723, formerly article 806, O. C. P.), we think such a charge not inappropriate.

Many other matters are assigned as error, but we pretermit discussion of them, as they will likely not arise upon another trial.

For the reasons given, the judgment is reversed and the cause remanded. 
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