
    TRINKLE v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Perjury (§ 11) — Testimony—Materiality.
    Where the grand jury investigating violations of the law prohibiting the sale and storing of intoxicating liquors investigated _ the question whether certain persons had received liquor, and stored the same in a house rented by a witness before the grand jury, and whether he knew that the persons had received liquor on a designated date and stored it in the house, the false testimony of the witness that no liquor had been received and stored in his house constituted perjury.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 38-54; Dec. Dig. § 11.]
    
      2. Perjury (§ 31) — Evidence—Sufficiency.
    The state on a trial for- perjury must not only prove the alleged perjured testimony, but must prove that accused knew that the testimony was false when he gave it.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. § 107; Dec. Dig. § 31.]
    3. Perjury (§ 33) — Evidence—Burden of Proof.
    On a trial for perjury, evidence held not to show that accused knew that the alleged perjured testimony was false when he gave it.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. §, 33.]
    4. Perjury (§ 33) — Evidence—Sufficiency.
    That accused on a trial for perjury knew that the alleged perjured testimony was false when he gave it may be proved by circumstantial evidence.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§, 117-124; Dec. Dig. § 33.]
    5. Criminal Law (§ 306) — Evidence—Presumptions.
    Where the placing of liquor in a room was depended on as a circumstance to prove that accused charged with perjury in testifying that liquor was not placed in his house knew that the testimony was false, the evidence must show that accused had control of and was in charge of the room, under the ■ rule that the court cannot base one presumption on another presumption.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 719; Dee. Dig., § 306.]
    6. Perjury (§ 32) — Evidence—Admissibility.
    On a trial for perjury based on accused testifying that liquor was not received and stored in his house on a designated date, the testimony of the receipt of liquor on that date was admissible, but the receipt of liquor on later dates was not admissible, in the absence of evidence that accused had notice thereof.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    Appeal from District Court, Upshur County; R. W. Simpson, Judge.
    R. C. Trinkle was convicted of perjury, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For otaer 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
    
   HARPER, J.

Appellant was prosecuted and convicted of perjury, and his punishment assessed at two years’ confinement in the state penitentiary.

Appellant’s motion to quash the indictment is on a number of grounds, none of which are well taken. If the grand jury was investigating violations of the law prohibiting the sale and storing of intoxicating liquors, it would be a material inquiry whether or not certain persons had received 15 barrels of beer and stored it in a house rented by Mr. Trinkle, and if he knew that a person had received that much beer on the 30th day of May and stored it in his house, and answered the grand jury that no such liquor had been received and stored in his house, an indictment for perjury based on those facts could and should be sustained, and the court did not err in so doing.

The state proved by two credible witnesses that appellant was summoned before the grand jury, duly sworn, and testified. The substance of his testimony before the grand jury is stated by Mr. B. C. Buie in the following language: “There was a question before that grand jury upon that occasion about some shipments of beer to' J. Hanson at Big Sandy, Tex. I remember R. C. Trinkle being questioned about a particular shipment of about 15 casks or barrels of beer, shipped to J. Hanson at Big Sandy, Tex., on or about the 30th of May, 1911, a special shipment of 15 casks of beer. I remember what his testimony was with reference to this 15 casks or barrels of beer that was shipped down there to J. Hanson about that date. R. O. Trinkle said that there was 15 barrels all right, but that it was sugar and coffee, and was not any beer. Trinkle was questioned with reference to whether or not 15 barrels or casks were unloaded in the back end of his store or place of business, and he said that it was; he said that it was sugar and coffee. He stated nothing about from where the sugar and coffee came. He stated it was shipped to Big Sandy. He was questioned especially about this shipment of beer to J. Hanson on that particular date on which this barrel goods was unloaded in his house, and he stated whether or not this beer or stuff shipped to Hanson was unloaded in his house; he said it was sugar and coffee, and was not any beer, and he said it was unloaded. His attention was called to the amount of stuff; there was something like seven or eight barrels of sugar and nearly the same amount of coffee; and he was questioned as to whether or not he handled that much in his- business. The particular matter which the grand jury was investigating at that time was in regard to that beel that ■ was shipped to Hanson. Hanson had been before the grand jury and had testified with reference to it, and Trinkle was called before the grand jury on the proposition as to whether Hanson had sworn the truth or falsely; and Trinkle was called to testify as to whether or not this beer had been put back there. Trinkle was also questioned at that time about whether or not other shipments of beer that had been sent to J. Hanson had been unloaded in the back of his house; there was something said about that, but then I don’t remember exactly how that was. I remember that there was something said about maybe two or three different shipments. My recollection is that he said none of them had been unloaded back there. It is my recollection that Trinkle said there had never been any beer sent to J. Hanson, or anybody else, and unloaded in the back end of his house.” Mr. W. G. Barnwell testified, in substance, to the same facts, he being also a member of the grand jury.Thus the fact that Mr. Trinkle so testified is amply proven, but it was incumbent upon the state to prove that lie knew the testimony was false when he so testified.

J. G. Howell testified that J. Hanson received 15 barrels of beer on May 30th, and he delivered it to him. John Kellar testified that he hauled this beer for J. Hanson and unloaded it at the back of a building; Mr. Trinkle occupying the front part of the building. He says he did not see Mr. Trinkle, and does not know whether Mr. Trinkle knew anything about it or not. No witness testifies that Mr. Trinkle had any personal knowledge that the 15 barrels of beer was received by J. Hanson on that date, and there is no circumstance in evidence authorizing that conclusion or deduction other than the testimony of the grand juryman hereinbefore stated; that is, when Mr. Trinkle was asked about 15 barrels being unloaded at his door, he stated he had received 15 barrels, but that it was sugar and coffee. On- the trial of this case, Mr. Trinkle still so testifies, and H. J. Peltzer testifies that about this time he closed his commissary and sold Trinkle a large bill of goods, some sugar and coffee, not remembering the amount. Would the circumstance that, while denying that he had any knowledge that the beer was received and stored in his house, he falsified about the receipt of the sugar and coffee, authorize the jury to find that he knew the beer was received, in the absence of any other testimony, and all testimony to bring positive knowledge to him? Again, Trinkle positively swears that the portion of the building in which the dray-man testifies the beer was unloaded was not rented by him or under his control. The building is a store building divided by partition walls. He testifies the rear room was not rented nor used by him; that he did not have a key to this room. There is no testimony, other than suspicious circumstances, that this room was under his control, and, if not, the unloading of the beer there would trace no knowledge to him. It is true the landlord, Mr. Lowry, is shown to be dead, and had been dead for some time. Certainly there is some one living, his wife or other person, who knows whether or not Trinkle had this portion under his control and management. At least, it may be said the absence of testimony does not prove any fact, especially when there is positive testimony (the testimony of Trinkle) that such was not the fact. We are forced to the conclusion, after reading and re-reading the record before us, that the testimony fails to trace notice to Trinkle that J. Hanson received the barrels of beer on May 30th; that at the time he testified before the grand jury in June he had knowledge of that fact, and, as the prosecution is based on that fact, the judgment must be reversed and remanded. Of course, knowledge of this fact can be proven by circumstantial evidence as any other fact, but if .the placing of the beer in a certain room is depended on as a circumstance to prove knowledge, then certainly the testimony ought to show that appellant had control of and was in charge of this room. We cannot base one presumption on another presumption.

The testimony of the receipt of this 15 barrels of beer on May 30th by Hanson was admissible in evidence, as the state was seeking to prove that appellant had testified falsely in regard thereto, and endeavored to so show. But the receipt of a shipment of beer by J. Hanson on May 18th, April 29th, April 15th, and March 24th were not admissible under the record before us. There was no evidence offered that appellant had any notice of the receipt of these four latter shipments; no evidence that this beer was carried to the building in question, if it was in appellant’s control. On another trial the testimony as to these latter shipments will not be admitted, unless the state introduces some evidence that appellant also had knowledge of the receipt of these shipments.

There are other questions in the record, but, as it will be necessary to reverse and remand the case on account of the above matters, we do not deem it necessary to discuss them.

The judgment is reversed, and the cause remanded.  