
    POULTER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    Rehearing Denied May 28, 1913.)
    1. Criminal Law (§ 1091) — Apueaj>-Bill or Exceptions— Sufficiency.
    A bill of exceptions complaining of the overruling of accused’s challenge to a juror presents no error, where it was not shown that this juror served, or any other objectionable juror served.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2S24. 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    2. Perjury (§ 32) — Prosecutions—Evidence —Admissibility.
    In a prosecution for perjury based on accused’s false testimony that he was an infant when he incurred the obligation sued on, evidence that, in the action in which the testimony was given, he was asked if he had not stated to the clerk, when he applied for a marriage license some time before, that he was more than 21 years of age, is admissible.
    [Ed. Note. — For other cases, see Cent. Dig. §§ 108-116; Dec. Dig. § 32. Perjury, 1
    3. Witnesses (§ 251) — Knowledge — Reasons.
    In a prosecution for perjury based on false testimony by accused that he was an infant when he contracted the liability sued on, testimony by a witness that he filed a suit for accused’s mother for divorce is admissible when limited only to fix the date of his first acquaintance with accused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 865; Dec. Dig. § 251.]
    4. Criminal Law (§ 454) — Evidence—Opinion Evidence.
    Where it was claimed that accused falsely testified as to his age, testimony by witnesses as to their opinion of the age of accused is admissible when based on their acquaintance with him, and his size, weight, and appearance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1043%; Dec. Dig. § 454.]
    5., Perjury (§ 32) — Prosecution—Evidence —Admissibility.
    In a prosecution for perjury based on false testimony by accused that he was an infant when he incurred an indebtedness to plaintiff, the charter and amendments of the .plaintiff corporation in the former action are admissible.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    6. Criminal Law (§ 406) — Evidence — Admissions — Age.
    In a prosecution for perjury based on false testimony by accused that he was an infant when he incurred the liability sued on, evidence of conversations between accused and the road overseers, in which accused admitted that he had reached his majority before the time such debt was incurred, is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, S94r-917, 920-927; Dec. Dig. § 406.]
    7. Criminal Law (g 1091) — Appeal—Bill op Exceptions.
    A bill of exceptions reciting that in a prosecution for perjury based on false testimony by accused that he was an infant, a witness for the state testified that in a certain year he was thrown in company with accused, and that his residence was in the jail in Wise county, presents no error, where it showed that the court charged the jury to disregard testimony that accused was in the jail with the witness, and the witness was only allowed to testify'as to the length of his acquaintance with accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S03, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.*]
    8. Criminal Law (§ 1091) — Appeal — Bill oe Exceptions.
    A bill of exceptions reciting that one of accused’s witnesses was asked on cross-examination if he had not been indicted for murder, and when, presents no error when taken by itself, not showing that such evidence was not admissible for impeachment, and it appearing from the record that the witness in question was one of accused’s attorneys, and that he stated he did not object to going into the details of the whole transaction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2S18, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. ( 1091.]
    9. Perjury (§ 6) — Offenses— Administration of Oath.
    Under Pen. Code 1911, arts. 304, 308, respectively, providing that perjury is a false statement, written or verbal, relating to something under the sanction of an oath¡ where such oath is legally administered under circumstances in which it is required by law, or is necessary for the protection or defense of any private right, and that all oaths or affirmations legally taken in any stage of a judicial proceeding are included in the description of this offense, false testimony by accused upon the trial of an action in justice court that he was an infant at the time he incurred certain obligations constitutes perjury, though the cause was continued upon the claim of plaintiff that it was surprised by such testimony.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 7-17; Dec. Dig. § 6.]
    10. Perjury (§ 29) — Prosecution — Variance.
    Although an indictment for perjury charged that a material issue in an action in justice court against accused was whether he was a minor at the time he incurred certain obligations, and that upon that issue accused falsely testified, and the proof showed that upon accused’s testimony of his minority plaintiff made a claim of surprise, and the cause was continued, there is no fatal variance, a variance being a disagreement between, the allegations and proof in some matter which in point of law is essential, and it being immaterial in this prosecution whether the cause in the justice court proceeded to final judgment or was continued.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 97-106; Dec. Dig. § 29.*]
    11. Criminal Law (§ 1172*) — Prosecution-Instruction.
    In a prosecution for perjury, charges requiring the jury to find, beyond a reasonable doubt, that issue was joined between accused and plaintiff in an action in justice court, and that while it was pending accused gave the testimony upon which perjury was assigned, coupled with other charges, stating the averments of the indictment, and requiring a finding that they were true in order to convict, and that if, when accused testified in the justice court, the question was whether a continuance should be granted, and he was interrogated by counsel in order that the latter might determine if he would ask for a postponement, then accused should be acquitted, are more favorable to accused than he is entitled.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3128, 3164-3157, 3159-3163, 3169; Dee. Dig. § 1172.]
    Appeal from District Court, Parker County; D. M. Alexander, Special Judge.
    Ed Poulter was convicted of perjury, and he appeals.
    Affirmed.
    John L. Poulter, Mike B. Smith, and Leonard M. Levy, all of Ft Worth, for appellant G. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDBRGAST, J.

Appellant was convicted of perjury, and his penalty fixed at the lowest prescribed by law, two years in the penitentiary.

Appellant made no motion to quash the indictment on any ground. In his motion for new trial he complains of the indictment in some particulars. The indictment is in accordance with the approved form therefor, and it fully complies with the statutes prescribing the offense (P. C. arts. 304-308, inclusive) and with the statutes prescribing the requisites of an indictment for such offense (articles 451, 465, 453, 460, C. C. P.).

Appellant has some 14 bills of exception. It is not necessary to take up each separately, as some of them relate to the same character of matter. One is to the overruling by the court of his challenge of a juror. The bill in no way shows that this juror served, or that any other objectionable juror served. The bill presents no error. Oates v. State, 149 S. W. 1194, and cases there cited.

The testimony of some of the state’s witnesses, objected to by appellant, was to the effect that the appellant, in the justice court case wherein he is charged with having sworn falsely to his age, and that he was at the same time, when examined, asked in the justice court case if he had not in substance stated to the clerk, when he applied for license to marry some time before then, that he was then more than 21 years of age. This testimony, under this case, was clearly admissible.

Neither is any error shown .by his bill complaining that the state’s witness Shropshire, in order to fix the date of his first acquaintance with appellant, fixed it by stating the date he filed a suit for his mother for divorce. The court specifically limited such evidence for the purpose of the witness fixing the date. Bice v. State, 37 Tex. Cr. R. 41-42, 38 S. W. 803.

Neither does any of his bills objecting to the various witnesses testifying their opinion as to the age of the appellant, they showing fully their acquaintance with the appellant, and his size, weight, appearance, etc. Earl v. State, 44 Tex. Cr. R. 467, 72 S. W. 175; Bice v. State, 37 Tex. Cr. R. 38, 38 S. W. 803; Jones v. State, 32 Tex. Cr. R. 108, 22 S. W. 149; Garner v. State, 28 Tex. App. 561, 13 S. W. 1004; Earl v. State, 66 S. W. 839; Railroad v. Bowles, 32 Tex. Civ. App. 118, 72 S. W. 451; Donley v. State, 44 Tex. Cr. R. 428, 71 S. W. 958.

Neither does his bill complaining that the court admitted the charter and amendment thereto of the Lowe-Carter Hardware Company, which was the plaintiff in the original justice court case, wherein appellant is charged to have sworn falsely.

Neither did the court err in permitting the road overseers to testify that they had summoned appellant to work on the roads— one in 1905 and 1906, at which respective times he stated to the overseer that he was 18 years of age in 1905, and that he was 19 in 1906. To the other overseer, who summoned him for the year 1910, that he then worked the road, and when told by said overseer that he had failed to find him, to notify him to work the road in 1911, he stated he was glad he was not there, and that he beat him out of that much. All this was admissible as tending to show his age, which was a material question in the case.

The ninth bill is as follows: “Be it remembered that upon the trial of the above-styled and numbered cause Tom F. McClure, a witness for the state, testified, in part, as follows: ‘In 1901 I was thrown in company with the defendant Ed Poulter for some time — several days or weeks possibly. I was then living in Decatur, Wise county, Texas. My residence was in the jail in Decatur, Wise county.’ Witness was then asked by state’s counsel: ‘State whether or not the defendant, during this time you associated with him, was in jail with you?’ The witness answered: ‘He was.’ Defendant’s Counsel: I object to that —to the question and answer. I except to the question, and reserve a bill to the statement of counsel. The Court: I sustain the objection to that. Gentlemen of the jury, you will not regard this last question and answer for any purpose; will not consider it. Q. Now about how long was it — was he there, or with you there, in town, in'Wise county, in Decatur, that you knew him or saw him? A. Why, it was several days, and of course I cannot recall now how many weeks it was —how long he was there with me. Defendant’s Counsel: I object to the question and answer and except to it — to evidence along that line hereafter. The Court: I think the witness could testify as to his acquaintance with him; how long he knew him. Defendant’s Counsel: I do not object to that. The Court: I sustain the objection to the question asked. Gentlemen, you will not regard that last question and answer, nor consider it in this ease for any purpose. Q. About how often, during these occurrences or incidents that you speak of, in 1901, how often did you see him? Defendant’s Counsel: I object to that and except to the question, because the court has held that occurrence is inadmissible. They have already stated what the occurrence was; immaterial and prejudicial. The Court: You can ask him how long he knew him. The defendant now presents this bill of the exceptions above, stated, and asks that it be approved and made of record in this case, and it is done.” This in no way shows how appellant was injured, or could have been injured, thereby. Sweeney v. State, 146 S. W. 883.

The only other bill is in full thus: “Be it remembered that, upon the trial of the above styled and numbered cause, John L. Poulter was called, and testified as a witness for the defendant, and on cross-examination was asked if he had not been indicted for murder in Wise county, and answered that he had, about ten years ago, and was never tried for it. Q. Defendant’s Counsel: For the murder of your uncle? A. Yes. Defendant’s Counsel: We object, and take a bill of exception to the question and answer. And the defendant here tenders this bill, and asks that it be approved and made of record in this case, and it is done. Witness: I do ndt object to going into the details of the whole transaction. State’s Counsel: When was that? A. Ten years ago — something like that. Defendant’s Counsel: The objection is because it is irrelevant and immaterial; not admissible; too remote; sheds no light upon the issue in this case; not admissible for impeachment. The court overruled the objection, and to such ruling and action of the court the defendant then and there excepted, and here now tenders this his bill, and asks that the same be approved and made of record in this case, which is done.”

This bill, under all the rulings of this court, is too general to authorize or require this court to review the question. It does not state the status of the case so that we can tell whether any error was committed or not, nor does it even tell what the testimony of this witness was, so as to show whether it could have possibly affected even his testimony. If we could look to the record for all the facts, it would show that this witness was one of appellant’s attorneys in this case, and at the time he testified, it will be seen by the bill itself, he stated that he did not object to going into the details of the whole transaction. Nor does the bill show any such state of facts as to show that this evidence was inadmissible. That the bill is wholly insufficient under the rules of this court, see Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112, and cases there cited. Neither does the bill show any such state of facts as to show that this evidence is not admissible for impeachment purposes. For aught that the bill shows, it may have been clearly admissible. Ortiz v. State, 151 S. W. 1058; Oates v. State, 149 S. W. 1196; and see cases cited by Mr. Branch in his Criminal Daws of Texas, p. 551.

The appellant contends that the evidence is wholly insufficient to sustain the conviction, and that the court erred in refusing to give his peremptory charge to findi him not guilty. The indictment charges to this effect, and the evidence was amply sufficient to sustain it: That shortly prior to December 26, 1911, Lowe & Co., a corporation, sued the appellant and one John Baker in the justice court in precinct No. 1 of Parker county, Texas, on two promissory notes executed by appellant, one for $80 and the other for $40, each providing for interest and attorney’s fees, and to foreclose two mortgages on personal property to secure the payment of said two notes respectively, executed by appellant to said Lowe & Co.; that on December 26, 1911, the case came on for trial regularly, at a regular term of said court, before said justice of the peace; that issue was duly joined between them, the plaintiff in that case seeking a judgment against appellant on said two notes and a foreclosure of said mortgage liens; that appellant in that case filed his answer therein, alleging as a defense that he was then and there under 21 years of age, and was, at the several times of the making of the said notes and mortgages, 19 years of age; that the said court had jurisdiction, and after the' said issues had been duly joined between the parties the case came on to be tried, and that appellant appeared and testified as a witness, after being then and there duly sworn by said justice as authorized and required by law and was necessary; that in said trial of the issues so joined between the parties it was a material question whether appellant was under the age of 21 years at the time of the filing of his said answer, and whether he was under 21 years of age at the time he made, signed, and executed said notes and mortgages, and whether or not he was only 19 years of age at the time he made, signed, and executed said notes and mortgages; and that, after being so sworn on the trial of said issue, he did falsely, willfully, and deliberately, before said justice court, swear that he was 19 years of age at the time he was so testifying, andi was 19 years old on March 23,1911, meaning thereby that he was only. 19 years old on March 23, 1911, which said statements were material to the issue in said cause. The indictment then charges,, traversing the truth of the said testimony of appellant on all these issues, and alleges that he was more than 21 years of age at the time he signed and executed said notes and mortgages, and that his said testimony was deliberately and willfully made, and deliberately and. willfully false, which he well knew. The testimony also shows, that the case was regularly reached for trial; that both sides announced ready; that each side stated its pleadings; that the plaintiff in that ease then had appellant duly sworn; that he then testified that he was not 21 years of age; that he was only 19 years of age; and that he was only 19 years of age when he signed said, notes and mortgages, and was 19 years of age on March 23, 1911, and that he was not older than that. Thereupon the plaintiff in that case claimed that it was surprised at said testimony and said plea of minority, and asked the court to permit him to withdraw his announcement of ready, and to postpone the trial of the cause for a few days so that he could meet that issue and the testimony just given by appellant; that appellant opposed this, and insisted that the trial proceed, but that if it could not be then tried that it be continued until the next term of court, and the court took this action—continued the case until the next term.

The appellant’s contention is that this was not a trial, and that there was a fatal variance between the allegations of the indictment and the evidence. Our statute prescribes (article 304 P. O.) that perjury is a false statement, either written or verbal, deliberately and willfully made relating to something past or present, under the sanction of an oath, where such oath is legally under circumstances in which an oath is required or is necessary for the prosecution or defense of any private right. And article 308 is that all oaths legally taken in any stage of a judicial proceeding, civil or criminal, in or out of court, are included in the description of this offense. We think that clearly, in contemplation of this law, what occurred and is alleged and shown in this case was in truth and in fact a trial of the issue-joined, which was whether or not appellant was a minor at the time of said trial, and when he signed said notes and mortgages, and the court did not err in refusing to peremptorily charge the jury to find for the appellant.

There was no fatal variance between the allegations of the material facts and issues in controversy and the proof. As stated by this court, in Smith v. State, 7 Tex. App. 385: “Variance is ‘a disagreement between the allegation and the proof, in some matter which, in point of law, is essential to the charge or claim.’ 1 Greenl. on Ev. § 63; 1 Bishop’s Cr. Proc. § 485. And ‘matter which is merely useless never vitiates.’ State v. Elliott, 14 Tex. 426; Warrington v. State, 1 Tex. App. 168.” Again, this court in Werbiski v. State, 20 Tex. App. 132, said: “To constitute a fatal variance, there' must be a material misdescription in the pleadings of the cause of action, such as is calculated to mislead or surprise the adverse party. McClelland v. Smith, 3 Tex. 210; Warrington v. State, 1 Tex. App. 168.” 39 Cyc. 1122, defines variance as: “A disagreement between the allegations and the proof in some matter which, in point of law, is essential to the charge or claim; a substantial departure from the issue- in the evidence adduced; an essential difference between the pleadings and the proof.” In Skinner v. Grant, 12 Vt. 462, it is said: “Variance” means “material difference.” It is no variance that the proof does not show all the points in a declaration.

As stated above, the indictment in this ease charged that a material issue in the justice court was whether or not appellant was at the time a minor, and that he was only 19 years old at the time of said trial, and at the time he signed said notes and mortgages; that that issue had been joined in said suit, and that that issue was then being tried. It was not essential, under the allegations in this case, that the cause or issue then being tried should proceed to a final judgment and a final, adjudication on the whole merits of the whole case. That the evidence establishes that said issue had been joined between said parties and that it was material, and the proof showed that that issue was being tried and that appellant gave material false testimony therein, we think is abundantly established.

The court, in every way, by the charge covered this point completely and fully; first in the main charge, in requiring the jury to find as an affirmative fact, beyond a reasonable doubt, that, in said justice court cause, issue was duly joined between the plaintiff and the defendants therein, and that said cause came on to be tried, and was then and there being tried, before said court on said issue, before they could convict. Then, in another separate paragraph entirely, the court charged that the indictment alleged that at the time appellant gave the testimony upon which perjury is assigned said cause was pending in said justice court, and was at the time being tried by the presiding justice thereof, and that unless the jury believed from the evidence, beyond a reasonable doubt, that said cause was being tried, or if they had a reasonable doubt thereof, to acquit appellant. Still, in addition to this, the court gave appellant’s special charge No. 6, wherein it is again recited what said indictment charges on this point, stating what the indictment did so charge, and told the jury: “Xou are instructed in this connection that, unless you believe beyond a reasonable doubt all of the foregoing allegations to be true, it will' be your duty to acquit defendant.” And still further gave another special charge of appellant on this subject: “If you find and believe from the evidence that, at the time Ed Poulter testified in the justice court, the court was engaged in determining whether or not a continuance of the ease should he granted, or if the said Poulter was then being interrogated by said Shropshire, in order that the said Shropshire might decide whether he would ask for a postponement of the case, then you will acquit the defendant.” All these charges charged the law as favorably, if not much more favorably, to appellant than should have been charged.

The court, in the sixth paragraph of his charge did tell the jury correctly what were the material allegations in the indictment upon which perjury was based, following the indictment on that subject, and appellant’s complaint that he ought not so to have charged cannot be sustained. Nor can appellant’s complaint in his ninth ground of his motion for new trial be sustained, wherein the court submitted to the jury the question as to whether or not appellant swore in the trial in the justice court that he was 19 years old on March 23, 1911 (meaning thereby that he was only 19 years old on March 23, 1911). The charge in this respect followed substantially, if not literally, the allegations of the indictment and of the proof thereon. The charge on all of the material issues in this and in every other respect followed substantially, if not literally, the allegations in the indictment and the proof thereon submitted. We think it is unnecessary to take up in detail each of appellant’s complaints of the charge of the court. What we have said applies to the whole of them without this.

The evidence was abundantly sufficient to sustain, and did sustain, every material allegation in the indictment, and was amply sufficient to show that appellant, at the time he swore in the justice court that he was then only 19 years of age, was in fact, at least, 25 or 26 years of age, and that he knew that he was testifying falsely at the time he testified that he was only 19 years of age.

We have carefully considered all of appellant’s assignments of error, and none of them present any reversible error. The judgment will be affirmed.

HARPER, J.

In agreeing to the affirmance of this case, I do not agree that no error is presented in the bill in regard to the cross-examination of the witness John Poulter; but inasmuch as he was an attorney in the case, and did not insist on the objection, and was permitted to explain the entire transaction in a way that would perhaps not prejudice the jury against him, it may not present such error as would call for a reversal, especially as it was waived by appellant. However, I think the charge of murder too remote, and it was not permissible 'to show whom he had killed, nor were the details of that transaction admissible in evidence.  