
    ROBERTS v. STATE.
    (No. 4837.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1918.
    On the Merits, March 6, 1918.)
    1.Bail 3=70 — Recognizance on Appbai>-Neglect oe Proper Entry.
    Where defendant did what he could to have a recognizance, and entered into it, as the judge certifies, in open court, the neglect of one of the." officers of the court, as the clerk, to carry the recognizance properly into the minutes will not deprive defendant of his appeal, but the case will be continued that he may either have the recognizance entered upon the minutes, or have a sufficient recognizance fixed by the judge.
    2. Criminal Law <§=^>1092(16) — Appeal—Exceptions — “Filing Back.”
    Where exceptions of defendant to the refusal to give requested instructions were in fact presented to the court and became papers of the case at the time, and were deposited with the papers and the clerk, there was sufficient filing, and the order of the trial judge instructing the clerk to place his file mark on the papers as of the date of filing was not a filing back.
    3. Criminal Law 3=1092(16) — Appeal — Contest over Filing Back op Exceptions.
    If there is any contest insisted upon in the Court of Criminal Appeals as to the filing back of exceptions, the real condition of things should be made to appear by proper order of the trial court, as contests of such matters by motions, affidavits, and statements are not to be encouraged.
    4. Criminal Law 3=31092(16) — Appeal — Late Filing op Papers in Record.
    Where papers are in the record, and were not presented to the clerk for filing within proper time, but after the time had elapsed in which they should have been filed, that fact can be shown.
    5.. Criminal Law 3=31092(16) — Appeal—Exceptions — Failure op Clerk to Put File Mark on.
    Where requested instructions refused by the trial court ,are shown to have been indorsed by him as refused on a particular d.ay at the time of trial, the Court of Criminal Appeals will take the date as correct, and the mere fact of the clerk’s having failed to put his file mark on the papers at that time does not affect the legality of the filing of the exceptions.
    On the Merits.
    6. Indictment and Information 3=159(4)— Obliteration op Alias.
    In a prosecution for perjury, where, at defendant’s request, the court ordered the indictment changed to omit the expression “alias High Pockets,” defendant having been indicted as Ed Roberts and the alias, but a pencil or pen used in erasing the alias did not fully obliterate it, defendant had a right to have that done when he was called upon to answer the reading of the indictment, as he had a right to plead under whatever name he thought proper, and to have the indictment changed to conform to the name he gave.
    7. Perjury 3=32(1) — Evidence.
    In a prosecution for perjury, where defendant was not present at the first difficulty, but claimed only to have been present at a second transaction, when the killing occurred, and testified to what he saw, the details of the first difficulty were inadmissible against- defendant.
    8. Criminal Law 3=518(1) — Evidence — Confession — Incriminating Statement.
    In a prosecution for perjury committed by testimony on writ of habeas corpus for bail in a homicide case defendant having been arrested himself for the homicide, or as having a guilty participancy in it, testimony that while under arrest defendant denied any knowledge of the shooting, and his presence at the time and place, was inadmissible against him, as a statement made without warning and without writing, though he testified in the habeas corpus proceedings that he witnessed the difficulty between the homicide and deceased, though the testimony was not a confession with reference to the homicide, and though defendant was not telling the truth about the matter in the homicide case.
    9. Criminal Law @=518(2) — Evidence — Confession in Custody.
    To exclude defendant’s confession or incriminating statement, detention, legal or illegal, is sufficient, and it is not necessary that a complaint or indictment be filed to constitute the basis of the arrest.
    10. Criminal Law @=3351(3) — Evidence — Flight.
    In a prosecution for perjury committed on writ of habeas corpus for bail in a homicide case, evidence as to defendant’s evasion of the process of the court to bring him in as a witness on the trial for the homicide was not admissible against him on the theory that ,he was a fugitive, though if defendant had fled to avoid the 'indictment and trial for perjury the fact might have been shown in evidence.
    11. Witnesses @=344(4) — Credibility — Showing oe Business. ■
    In a prosecution for perjury, defendant was entitled to ask and obtain from a state’s witness the business in which he was engaged, or the calling or -occupation he pursued, to affect his credibility by showing that he was in the employ of a disorderly house.
    12. Perjury @=37(2) — Instruction—Definitions.
    In a prosecution for perjury, the trial court on request should have given a special charge defining the words “willfully” and “deliberately!’ in connection with perjury.
    13. Perjury @=37 (3) — Evidence — Proceedings Resulting in Perjury — Limitation:
    In a prosecution for perjury, where the state introduces the proceedings in the trial on which the perjury was committed, if the result of such former trial was adverse to the testimony of defendant charged with perjury, the court must limit the effect of the evidence; otherwise such a charge is unnecessary.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Ed Roberts was convicted of perjury, and be appeals.
    Motion to dismiss denied, and judgment reversed, and cause remanded.
    J. Ed. Wilkins, of San Antonio, for appellant. E. B. Hendricks, - Asst. Atty. Gen., for the State.
   DAVIDSON, ■ P. J.

Appellant was convicted of perjury, and allotted 'two years’ confinement in the penitentiary.

Motion is made by the Assistant Attorney General that the appeal be dismissed because appellant’s recognizance was not entered properly upon the minutes in the trial court. The matter is in confusion as to whether it was or was not so entered. The transcript contains a- recognizance. The state attacks the verity of this, and says as a matter of fact it was not so entered. The judge certifies, as does the clerk, in addition to the record, that defendant and his sureties came into open court and were duly recognized in the amount fixed by the district judge. The only question ■ presented from this phase of the motion is that this recognizance was not carried forward into the regular minutes of .the term. The clerk certifies to his “rough minutes,” and attaches it- as an exhibit to the motion to dismiss,' showing that the recognizance was properly taken, but does not set out the recognizance in full. The motion to dismiss will not be sustained, but the case will be continued by this court to give opportunity to the trial court to have the recognizance properly entered. When this is done, the clerk will forward a certified copy to this court showing the fact of the entry. The defendant did what he could to have a recognizance; entered into- it,- as the judge certifies, in open court. This clearly entitled him to have his case considered on appeal, and the neglect of one of the officers to carry this into the minutes will not deprive him of his appeal, but the case will be continued that he may either have the recognizance entered upon the minutes, or a sufficient recognizance to be fixed by the judge. The clerk of this court will issue proper notice. to the court below to have recognizance properly entered upon the minutes of the court at that court’s early convenience.

There is also a motion to “strike out” some exceptions of appellant to give certain requested instructions, on the ground that the clerk certifies they were filed back by order of the court. Just what he means by this is not explained. The trial was had on August 3d. When these charges were presented and exceptions -taken to their refusal, it was on the 3d of August. Twenty-eight days later the motion for new trial was overruled. The clerk certifies these matters were ordered ■ filed back. If it is meant by this that the papers were presented to the judge at the time of the trial within the terms of the law and refused, as they show upon their face to have been, a^d the clerk neglected to put his file mark upon them - at that time, it would not be filing these papers back to place the file mark on them as of August 3d. - They were in fact presented to the court and became papers of the case at the time, and were deposited with the papers and the clerk. That was a sufficient filing, and the order of the judge instructing the clerk to place his file mark as of that date would not be a filing back. This would be but supplying an omission of the clerk and not filing back. If there is any contest insisted upon about this matter, the, real condition of things should be made to appear by proper order of.the court. Contests over matters of this sort by motions and affidavits and statements are not -to be encouraged. -If, as a matter of fact, the papers were not presented to the court at that time, the court’s certificate can show that fact. - We understand it to be the rule that where papers are in the record, and were not presented to the clerk for filing within proper time, but after the time has elapsed in which they should be filed, that fact can be shown. Where requested instructions refused by tbe court are shown to have been indorsed by him as refused on August 3d, at the time of the trial, this court would take that as correct. The mere fact of the clerk failing to put his file mark on it at that time would not affect the legality of the filing of the exceptions. This motion as presented to strike out these papers will not be granted. The clerk of this court will issue the proper order of this court to the trial court to enter upon the minutes of the trial court the recognizance as entered into, and to at once forward a certified copy of said recognizance.

On the Merits.

On a former day of the term there was an order entered of record postponing the trial of this case until a recognizance could be had properly in the trial court for the reasons stated in the opinion awarding the postponement. This matter has been properly attended to in the trial court, and a proper recognizance is now before the court, which attaches the jurisdiction of this court, and the case will be disposed of on the record. Appellant was convicted of perjury; his punishment being assessed at two years’ confinement in the penitentiary.

The allegation upon which the perjury is based, in substance, is that appellant swore on a habeas corpus hearing in a homicide case in which Way was charged with killing Louis Moglia, Sr., that before Way fired the first shot in that difficulty that young Mog-lia had started towards the north end of the counter where there was located his pistol. Way shot and killed the elder Moglia, the father of the young man. The indictment alleged in ordinary terms that this was material, and was willfully done, etc. We deem it unnecessary to discuss the question of the irregularity of the special term of the court. This matter seems to have been in compliance with the decisions.

At the request of appellant the court ordered the indictment so changed as to omit the expression “alias High Pockets.” Appellant was indicted as Ed Roberts, alias High Pockets. A pencil or pen was used in erasing the expression “alias High Pockets” in the indictment, but it did not fully obliterate it, and a question is raised upon this. Appellant had a right to have this done when he was called upon to answer to the reading of the indictment. He had a right to plead under whatever name he saw proper, and to have the indictment changed to conform to the name he gave. Upon another trial this matter should not arise, and the obliteration of it will be sufficient to erase it entirely. This might not amount to much in the case, but defendant had a right to have it done, and the matter is mentioned more specifically because in the charge of the court, in mentioning the case, he stated to the jury that the party was Ed Roberts, alias High Pockets. After it had been erased from the indictment this should not have occurred in the charge. This will not occur úpon another trial.

In order to review some of the bills of exception a brief statement of the trouble between Way and Moglia, in which the elder Moglia lost his life, will be necessary, as the prosecution for perjury grew out of that transaction, or rather the testimony on writ of habeas corpus of Way for bail. Way aad gone into a saloon owned by Moglia, and had taken a drink. After so doing he sat in a chair and went to sleep. After waking he missed a piece of jewelry, and called Mog-lia’s attention to the fact, and demanded its return. This brought a difficulty in which hard words ensued, and the elder Moglia became very much offended at his son being charged with theft. This charge by Way seemed to have been directed against young Moglia, and the father, who later became the deceased, interfered and expressed great indignation that his son should be charged with such theft. Two or three hours subsequent to this Way appeared in the saloon, and the difficulty occurred in which the elder Mog-lia was killed. The contention of Way on the writ of habeas corpus, and the truthfulness of which had to be overcome in order to make appellant guilty of perjury, was that young Moglia started towards the north end of the counter to get his pistol and Way began shooting. Appellant swore upon the habeas corpus trial that young Moglia did start in that direction, and that a pistol was kept at that point. On appellant’s trial the state introduced evidence of the first trouble between Way and the Moglias with reference to the jewelry that was taken. The details of this trouble were introduced against appellant on his trial. Exception was reserved. We are of opinion the exception was well taken. Appellant was not present at the first transaction, and was not charged with notice or knowledge of those matters. He claims to have been present at the second transaction, and testified to what he saw. Matters that occurred at the time of the homicide when appellant said he was present would be evidence because they were within his knowledge and observation.

Appellant was arrested almost immediately after the killing, or within a very short time, and carried by the police officers to their headquarters. While under arrest he was asked with reference to the shooting and denied any knowledge of it or his presence at the time and place. The details of these bills of exception, there being several, of them, are not necessary to state. The court admitted the testimony upon the theory that he was not charged with the homicide, and it was not a confession, and that this perjury was an independent offense, and, therefore, these statements could be used against him, although' under arrest without warning, or being in writing. ■ Subsequently, on tbe habeas corpus trial appellant did state be was present, and saw young Moglia start in the direction of his pistol. The denial was used as evidence of his guilt in this case. It was a criminating fact, as thought by the state. We are of opinion that this testimony was not admissible, and the fact that it was not a confession with reference to the homicide, or that he was not telling the truth about this matter in the homicide case, would not authorize the state to use that statement as an incriminating fact to convict for the perjury. See Branch’s Orim. Law, § 208, also 218; Davis v. State, 19 Tex. App. 201; Taylor v. State, 3 Tex. App. 387; Murff v. State, 76 Tex. Cr. R. 5, 172 S. W. 238; O’Connell v. State, 10 Tex. App. 567; Robinson v. State, 55 Tex. Cr. R. 42, 114 S. W. 811. There are several bills of exception with reference to this matter, and this denial seems to have been made, as shown by one or more of the bills, especially bill 13, because he had been arrested for the homicide, or as having a guilty partieipaney in the homicide with Way. It is evident from these bills that appellant was arrested in connection with the homicide, and sharply-questioned by the officers, and these statements were denials of his presence at the time and place of the killing and participan-cy in the homicide of Moglia by Way. In this connection he further made a statement, though it was just subsequent to the other statement, to Hansen that he was present at the time and saw the transaction. The purport of this denial and statement to Hansen was a contradiction of the statement to the officers which it seems Hansen had heard made by appellant to the officers. Having introduced the statement of the officers, this statement of appellant should have gone to the jury. It is unnecessary to discuss this matter further. Upon another trial these statements will be excluded. It was not necessary that a complaint or indictment be filed to constitute basis of arrest. It is sufficient if he be under arrest even on suspicion. Detention, legal or illegal, would be sufficient to exclude such confession or statement.

There are several bills of exception which it is not necessary, we think, to notice in detail, as all bear upon the same matter. Process had been issued for appellant to testify in the trial of Way. Hailing to appear, application for a continuance was made by Way for his presence; also at one time appellant was brought under arrest or attachment by an officer in the Way case. These matters are set out in several bills of exception and at length, but the above is practically the substance of the contention. This testimony was not admissible. The court seems to have admitted this testimony upon the theory that appellant was a fugitive, and that if he did evade process of the court in the Way case, such flight could be used as evidence of his guilt in this case. None of this testimony was admissible in his trial for perjury. Appellant had testified in the habeas corpus trial as charged in the indictment upon which the perjury was predicated. Way was subsequently indicted and sought the attendance of the appellant as a witness in his behalf. If appellant had fled to avoid this_ indictment and trial, the question of flight might have been used, but not his evasion of process in the Way trial for murder. This is a condensed statement of these matters, and it was erroneous. None of these matters will be permitted to go before the jury upon another trial. None of the evidence with reference to appellant’s evasion of the process of the court in the Way trial was legitimate evidence against him in this case as presented by this record.

There was a witness introduced by the state thought to be important. On the cross-examination of this witness appellant offered to prove that he was in the employ of the Zimmerman disorderly house, and that it was a well-known disreputable assignation and bawdyhouse, and that this witness frequented and was employed in that place. We are of opinion the defendant could ask and obtain from the witness the business in which he was engaged, or calling, or occupation pursued.

Appellant excepted' to the court’s charge for several reasons, and asked special instructions, which were refused. The court did not define what is meant by the words “willfully” and “deliberately” in connection with perjury. We are of opinion that the court should have given the special charge defining these words. We would not feel inclined to reverse for failure to do so usually, yet the statute uses those terms, and it is well enough, and in fact we think the court should define them to the' jury, especially when requested so to do.

The state introduced some of the proceedings in the habeas corpus trial of Way upon which this perjury is alleged to have been committed. This was admissible for reasons well known to the profession and understood in our jurisprudence, but appellant requested the court to limit the effect of this testimony, which was declined and refused. Wherever the result of the trial is adverse to the party on trial, and the perjury is alleged as growing out of that trial, it is necessary under the decisions to limit its effect to the purpose for which it was introduced. There is another line of decisions which hold that where the result of that trial was favorable to the side on which the witness testified, and upon which the perjury is based, it would not be necessary to so charge because the verdict or judgment was favorable to the side for which he testified. The bill is a little indefinite, but these two lines of decisions are well recognized, and if there is a doubt about this matter upon another trial the court should limit this testimony to the purpose for which it was introduced. ■

There are a great many bills of exception in the record, and the questions are elaborately presented, but disposing -of the case We have grouped them rather than follow the bills of exception seriatim. We deem it unnecessary to go into a discussion of each bill. There are a series of them presenting the same question from different views; therefore we have confined ourselves to grouping the questions rather than following them seriatim.

Eor the reasons indicated, the judgment will be reversed, and the cause remanded. 
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