
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.
    Rehearing Denied Nov. 26, 1913.)
    1. Perjury (§ 25) — Indictment — Sufficiency.
    An indictment for perjury, alleging that the false statement was material to the issue on trial, is sufficient without alleging the facts showing the materiality.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. § 25.]
    2. Perjury (§ 26) — Indictment — Sufficiency.
    In an indictment for perjury, it is not necessary to traverse and negative all the facts to which accused is alleged to have testified on the trial, but it is only necessary to negative such of his testimony as was alleged to be false.
    [Ed. Note — Eor other cases, see Perjury, Cent. Dig. §§ 90-94; Dec. Dig. § 26.]
    3. Perjury (§ 32) — Evidence—Admissibility.
    In a prosecution for perjury alleged to have been committed in an action on a note made by accused to another, the note, being fully identified, is admissible in evidence, although not marked with a file mark.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    4. Criminal Law (§ 1036) — Appeal—Objection Below — Necessity.
    In a prosecution for perjury, charged to have been committed in a civil suit in a justice’s court, the admission of the testimony of the justice, as to what the issues joined before him were, is not ground for reversal, where no objection was made below, even though the plea filed in the justice’s court would have been the best evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1631-1640, 2639-2641; Dec. Dig. § 1036.]
    5. Criminal Law (§ 1186) — Abpea]>-Harmless Error.
    In a prosecution for perjury, where there was no evidence that the testimony claimed as perjured was so given by mistake, inadvertence, or agitation, the failure of the court in his charge to define “willfully” and “deliberately” was not reversible error, in view of Code Or. Proc. 1911, art. 743, declaring that a judgment will not be reversed, where the error was not calculated to injure the rights of defendant; it appearing that accused was given the lowest penalty.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. § 1186.]
    6. Perjury (§ 12) — Prosecution—Defenses-
    That a false statement was made through inadvertence or mistake or under agitation is a matter of defense, in view of Pen. Code 1911, art. 305, declaring that such statements are not perjury.
    [Ed. Note. — For other cases, see Perjury, Cent Dig. §§ 55-61; Dec. Dig. § 12.] '
    7. Perjury (§ 1) — Prosecution—What Constitutes.
    “Perjury” is a false statement deliberately and willfully made.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. § 1; Dec. Dig. § 1
    
    For other definitions, see Words and Phrases, vol. 6, pp. 5305-5310; vol. 8, p. 7751.]
    8. Criminal Law (§ 1091) — Appeal—Presentation of Ground of Review in Court Be-lo w — Objection.
    An objection to an instruction contained in a bill of exceptions, which merely stated that it did not charge the law applicable to the indictment and the facts introduced, is too general to be considered on appeal.
    [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.]
    9. Criminal Law (§ 875) — 'Trial—'Verdict-Sufficiency.
    The misspelling of the words “guilty” by omission of the “t,” and “foreman” by omitting th§ “m,” in the verdict of the jury, does not vitiate it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2089, 2090; Dec. Dig. § 875.]
    Appeal from District Court, Austin County; Frank! S'. Roberts, Judge.
    Eddie Johnson was convicted of perjury, and he appeals.
    Affirmed.
    Johnson, Mhtthaei & Thompson, of Bell-ville, C. C. Glenn, of Sealy, and Buchanan & Stone, of Brenham, for appellant. C. 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 eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted of perjury and his punishment fixed at the lowest prescribed by law.

There was no motion to quash the indictment made in the lower court, but there was a motion, made some nine days after the trial, in arrest of judgment claiming that the indictment was insufficient. The indictment follows substantially, if not literally, the form therefor in White’s Ann. P. C. § 334, and Willson’s, No. 137, in his 4th Ed. of forms therefor.

“If the indictment alleges that the false statement was material to the issue on trial, it is sufficient without alleging the facts which show the materiality.” Section 332, subd. 6, White’s Ann. P. C., and eases there cited; Scott v. State, 35 Tex. Cr. R. 11, 29 S. W. 274.

It was not necessary under the indictment to traverse and negative each and all of what appellant is alleged to have testified on the trial. It was only necessary to negative such of his testimony as was alleged to be false. Robertson v. State, 150 S. W. 896, and Young v. State, 157 S. W. 151, and cases cited in both of these.

The court did not err in admitting the note in evidence. The note was produced and unquestionably identified as the note sued upon in the justice court in the trial of which case the perjury in charged to have been committed, and whether it had any file mark on it at all or not, or whether, instead of placing the file mark on the note, it was placed on a piece of paper, pinned thereto, would be wholly immaterial. There is no question as to the identity of the note.

The perjury alleged to have been committed by appellant in this case was in the trial of a civil case in the justice court on a promissory note wherein one Preibiseh was plaintiff and appellant and one Haak were defendants. The indictment alleges that it was a material question in said case whether appellant had signed his name, and had made his mark and authorized his name to be signed to said note; and that the issue thereon was duly joined between the parties; that, among other things, appellant swore on the trial of that case that he did not sign his name and did not make his mark, and did not authorize said 1-Iaak or any other person to sign his name or make his mark to said note; that in fact appellant did make his mark and did authorize said Haak to sign his name to said note; and that his testimony was false, and deliberately and willfully made, etc. In various ways appellant contends that this conviction cannot stand because the record does not affirmatively show that appellant had filed his plea of non est factum in the justice court denying his signature thereto, and he especially cites and relies upon Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108, and other cases, to sustain him. As shown above, the indictment does allege that the false testimony was material. Conceding that it must be proved, it does not necessarily follow that the only way to prove it is by the introduction of the plea of non est factum which was filed in the justice court. That would be a proper way to prove it; but if it was proven otherwise, without objection, such proof would be as effective. The record in this case does not show that any such written plea was introduced. But it does affirmatively appear from the statement of facts that the justice of the peace before whom the case was tried specifically testified that the issue was joined in that justice court suit and trial, as to who executed said note. This proof was made without any objection by the ’appellant, and he raises the question for the first time by his second amended motion for a new trial filed some nine days after the trial had been concluded. The Garrett Case, supra, does not hold that such proof of the issue joined cannot be made otherwise than by the intro.duction in evidence of the written plea of non est factum. Doubtless, if objection had been made to the oral testimony of the justice of the peace, stated above, the court would have sustained the objection, because the written plea itself may have been the best evidence thereof; but it is too late for appellant to raise the question the first time, after the trial of the case is concluded. We think the Garrett Case, supra, is therefore not in point.

Appellant also complains that the court failed to define the words “deliberately” and “willfully” in his charge. The court, in approving the bill on this point, qualifies it by stating that the failure of the court to define these words was not excepted to at the time, and no requested charge defining them was asked by appellant, and “there was no issue raised by the evidence of mistake, inadvertence, or agitation when said alleged false statement was made in the justice court; the defendant’s only defense presented being that he did not sign or authorize any one to sign for him said note.” Such being the case, and the jury having assessed the lowest penalty against appellant, this does not present reversible error. Article 743, C. C. P.

In Brown v. State, 9 Tex. App. 171, this court held the inadvertence, mistake, or agitation contemplated by P. C. art. 305, is defensive matter. While the word “deliberately” is not separately defined, yet as held by this court in Clay v. State, 52 Tex. Cr. R. 556, 107 S. W. 1129, the charge of the court, in this, as in the Clay Case, fully and sufficiently covered and embraced a definition of said word.

Appellant cites and relies on Windon v. State, 56 Tex. Cr. R. 198, 119 S. W. 309, and some like cases, to the effect that the failure to define “willfully” in a perjury case is reversible error. The Windon Case and others cited by appellant are based on the decision of Steber v. State, 23 Tex. App. 176, 4 S. W. 880. In the Steber Case it is expressly stated, “under the peculiar facts of this case,” we are of the opinion the court should have defined “willfully.” Then the court fully states such peculiar facts. The facts of that case and the defense of appellant are quite different from the facts and defense in this ease. The facts and defense are not stated in the Windon Case, but it is founded on the Steber Case, and, the same character of case, it must have come within the peculiar facts thereof. This case clearly comes within the eases of Hill v. State, 22 Tex. App. 579, 3 S. W. 764; Garza v. State, 47 S. W. 983; Woodson v. State, 24 Tex. Cr. R. 162, 6 S. W. 184; and other like cases. The opinion in the Garza Case was written by Judge Heiiderson, and in it he quotes the opinion of Judge Hurt in the Hill Case. These cases are specially and peculiarly applicable to this case. We quote and adopt the opinion in the Garza Case, as follows: “It is also urged that the trial court committed an error, for a failure to define the word ‘willfully.’ An exception to this failure of the court to define this word was not reserved at the time the charge was given, but is brought forward in the motion for a new trial. ‘Willfully,’ in this connection, is tantamount to ‘knowingly,’ and is distinguished from a statement made through inadvertence or mistake or under agitation. The charges on perjury, so far as we are advised, do not contain a definition of the term ‘willfully,’ further than is contained in the definition of the offense; that is, the jury are told that the statement must be willfully and deliberately made, and must be under oath in a judicial proceeding, and must be material to the issue joined, and that the falsity of such statement must be shown, and that appellant knew it was false when he made it, and that such statement must be shown to have been made not through inadvertence or under mistake or during agitation. These allegations contain the distinctive elements of the offense, and, when shown, carry with them the idea that the statement was made willfully; that is, knowingly and with evil intent. The view here stated is borne out in Hill v. State, 22 Tex. App. 579, 3 S. W. 764. In that case the court say: ‘The charge of the court is complained of because it does not define the word “willful.” No objection was taken to the charge when given, nor were any special instructions requested; the correctness of the charge being called in question for the first time in the motion for a new trial. We are cited to several cases holding that it is necessary to define “willful.” These decisions are correct, when considered with reference to the offenses discussed, and the peculiar facts of the cases cited. When, however, considered with reference to this offense, and when the charge is taken as a whole, we do not think the omission contributed in the least to injure the appellant. “Perjury” is a false statement deliberately and willfully made. A false statement made through inadvertence or under agitation or by mistake is not perjury. The court in its charge gave to the jury the above definition and restrictions in a very clear manner. We cannot see how a party can deliberately, without agitation, coolly,. without mistake or inadvertence, make a false statement, without such statement be “willfully” made. The omission, if error, not being objected to at the time, we must look to the entire record to ascertain if it was prejudicial to defendant; and, thus viewing the record, we perceive no injury.’ ”

In a separate paragraph the court told the jury: “If you believe that the defendant did not sign said note described in the indictment and did not make his mark for signature to same and did not authorize W. A. I-Iaak, nor any other person, to sign his name or his mark to said note, or if you have a reasonable doubt of this fact, you will acquit the defendant and so state in your verdict.” No complaint of such charge is anywhere made in appellant’s motion for new trial. It is presented solely by bill of exceptions which was presented to the court February 24,1913, and filed on that day, which was some 29 days after the adjournment of the term of court. The only objection to this charge is: “That the same does not state the law applicable to the charge in the indictment and the facts introduced on the trial of said cause.” Wherein or how it does not state the law is not given. This objection is too general under the well-established law, frequently decided by this court, to authorize this court to consider it, and presents no reversible error under the circumstances.

There are some misspelled words in the verdict of the jury, which was: “We the jury find the defendant guily and assess his punishment at two years in the penitentiary. Emil Krueger, Forean of the Jury.” The insufficiency of this verdict is complained of for the first time by bill of exception presented to the court long after adjournment for the term. The misspelled words in no way vitiated the verdict.

The judgment is affirmed.  