
    SCOTT v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    1. Perjury (§ 11) — False Statement Be-eobe Grand Juey — Answer to General Question.
    That the question asked of a witness before the grand jury is too general to form a basis for his impeachment will not preclude a false answer from being ground fofc a conviction of perjury.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 38-54; Dec. Dig. § 11.]
    2. Perjury (§ 32) — Evidence—Proceedings Before Grand Jury.
    In a prosecution for perjury based on a false statement, made by defendant as a witness before the grand jury, that he knew of no gambling, testimony of the foreman of the grand jury that they informed defendant that they had strong evidence that there had been gambling in which he was implicated, or of which he knew, and that they repeatedly urged him to tell the truth and gave him time to consider before signing his statement, was admissible on the issue whether defendant’s testimony before the grand jury was deliberate, and not under agitation, mistake, or failure of memory.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    3. Perjury (§ 32) — Evidence—Gambling-.
    Where an indictment for perjury, based on defendant’s denial as a witness before the grand jury that he knew of any gambling, alleged that he knew of gambling between certain parties at a certain place about May 1st, it was error to admit evidence that he knew of gambling át a different place on about August 1st, especially where it did not appear that the participants in both games were the same.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    4. Perjury (§ 37) — Instructions—Evidence —Gambling.
    Where the indictment, in a prosecution for perjury based on a false denial that defendant knew of gambling, charged him with knowledge that a particular game was played, and evidence was admitted showing that he knew of the playing of an entirely different game, it was error to refuse to instruct that the jury could not convict upon proof of any game except that alleged in the indictment.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 134-138; Dec. Dig. § 37.]
    5.Criminal Daw (§ 656) — Remarks of Court.
    Under Code Cr. Proe. 1911, art. 787, prohibiting the court from expressing any opinion about testimony, where, in a prosecution for perjury, a witness for the state appeared reluctant to testify, it was error for the court to state in the jury’s presence that the witness appeared to be evading the truth and to threaten to punish the witness, and to state to defendant’s counsel that, while he would give them any exception they wanted, he was “not going to have the witness interfered with.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dee. Dig. § 656.]
    6. Criminal Law (§ 657) — Conduct oe Court — Punishment oe Witness.
    Under Code Cr. Proc. 1911, art. 787, prohibiting the court from expressing his opinion about testimony, whenever it becomes necessary to punish a recalcitrant witness, he should retire the jury before doing so, in order that they may not be affected injuriously against accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1534; Dec. Dig. § 657.]
    7. Criminal Law (§ 898) — Conduct oe Court — Cure oe Error.
    Where the court, in a prosecution for perjury¡ by his remarks in the jury’s presence concerning two witnesses and also by punishment of the one who proved recalcitrant, clearly indicated to the jury that he believed the witnesses were evading the truth or testifying falsely, the matter was not cured by his subsequent instructions that the jury not consider such matters.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2118-2121; Dec. Dig. § 898.]
    8. Criminal Law (§ 772) — Instructions— Venue — Gambling.
    Where, in a prosecution for perjury based on defendant’s denial -as a witness before the grand jury that he knew of any gambling in the county where the grand jury was sitting, the evidence left it doubtful whether the game 0⅜ which defendant knew was not played in another county to which the grand jury would have had no right to extend its investigation, it was error to refuse to instruct that defendant should be acquitted unless the gambling occurred in the county where the grand jury was sitting.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. § 772.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Walter Scott was convicted of perjury, and appeals.
    Reversed and remanded.
    H. E. Trippet, of Hico, and Eidson & Bid-son, of Hamilton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

Appellant was convicted of perjury; liis punishment being assessed at two years’ confinement in the penitentiary.

The indictment is attacked because the questions asked by the grand jury of the witness were too general. The allegation is that appellant appeared before the grand jury, and was asked whether he had at any time within the last two years next preceding the 2d day of September, 1912, in Hamilton county, played at any game played with dice upon which money was bet, and whether he had seen any game played with dice upon which money was bet in Hamilton county, Tex., within the last two years; and in reply he testified that he had not played at any game played with dice upon which money was bet in Hamilton county within the last two years, and had not seen any person or persons play at any game played with dice upon which money was bet in Hamilton county at said time. The traverse is that appellant well knew that he had played and did in Hamilton county and state of Texas on or about the 1st day of May, 1912, play at a game played with dice commonly called craps and upon which money was bet, and especially had the said Walter Scott played at a game played with dice commonly called craps and upon which money was bet and with Billy Cole, Billy Rhoades, Vernon Smith, and other persons in Hamilton county within two years next preceding the said 2d day of September, 1912, to wit, on or about the 1st day of May, 1912, which said statement, etc., was false, etc.

Appellant says the indictment is insufficient because the questions are too general, and not sufficient even as a predicate for impeachment. In support of his proposition he cites Meeks v. State, 32 Tex. Cr. R. 420, 24 S. W. 98; and McMurtry v. State, 38 Tex. Cr. R. 523, 43 S. W. 1010. In McDonough v. State, 47 Tex. Cr. R. 227, 84 S. W. 594, 122 Am. St. Rep. 684, upon the point insisted upon by appellant, the Meeks and McMurtry Cases were overruled or qualified in such manner as to hold them no longer authority for the proposition asserted by appellant. The McDonough Case had been followed on this particular question. See McDonough v. State, supra. We hold therefore, in this respect, the position of appellant is not sound, and the indictment is sufficient.

By a bill of exceptions it is made to appear that Smith, foreman' of the grand jury, was permitted to testify as follows: “We (the grand jury) had pretty positive evidence that there was gambling going on, and the same evidence that he was implicated in it. We informed the defendant of this fact. We informed him the second time that we had pretty positive evidence, or positive evidence, that lie was in the gambling or knew of it.” Objection was urged to this because it was but the opinion and conclusion of the witness that the defendant was guilty, and it -was also getting before the jury the opinion of the witness and also of the other grand jurors the opinion of said witness and said grand jurors that the defendant, while a witness before the grand jury, had testified falsely about the matter for which he was indicted. The bill is qualified in this way: “As is shown in the bill, the grand jury informed the defendant of the facts that had come to its knowledge and put him in possession of the facts that had come to the grand jury’s knowledge as they had come to the grand jury, as is shown on page 3 of the statement of facts. Eor this reason, and the further reason that I regarded the evidence as a part of the res gestae,.I admitted the testimony. With this explanation the bill will be allowed and is ordered filed and made a part of the record.” This is signed by the judge.

The statement of facts, to which reference is made by the judge, shows this: “We had Scott subpoenaed before the grand jury in regard to reports of gambling that had oeen reported over there, and on his first examination he said he had not been implicated in gambling and had not since he had returned from the Navy, and he said something about that he had tried to reform, and we had pretty positive evidence that there was gambling going on and the. same evidence that he was implicated in it. (Objects to this last statement and sustained.) We informed the defendant of this fact. We informed him the second time that, we had pretty positive evidence, or positive evidence possibly, that he was in the gámbling or knew of it, and we warned him and took particular pains to warn him; in fact he was our town boy. I told him it was. reported and we had positive evidence or pretty positive evidence that he was- implicated and knew of gambling and was implicated in it, and I told him that I would be glad if he would ‘come clean’ in the matter in order to save any further trouble. He was before the grand jury twice the same evening, I think.' Maybe once the next morning. We told him to go out and try to refresh his memory and see if he could not recall things in regard to gambling, if he did not know of gambling, and if he had not been implicated in games, and to go out and study over the matter before signing the statement. He did so retire and then came back again. X could not tell how long intervened from the time he retired until he returned, but it was something like an hour or two. When he returned the second time, he was again warned and cautioned by .myself and the county attorney about like he was the first time. The second time he came in there he was warned as I stated,' and when we told him that we had positive evidence that there was gambling going on over there, and that he knew about it, and that he had been implicated in it, and that we would be glad if he would make a clean breast of the matter, and then he signed this statement the last time.”

Under ordinary circumstances this character of testimony would be inadmissible; but appellant in this case was put upon notice of the fact that he was suspected of being implicated in the games and knew of the fact that the games had been played, and he was a party to them, and we are of opinion it was not error for them to testify they called his attention to these matters. It bore upon the question of whether his testimony before the jury was deliberate and tended to show that it was not under agitation or mistake or failure of memory. Usually this character of testimony is not admissible; but, under the peculiar circumstances surrounding this matter as it occurred in the grand jury room, we are of opinion that the court did not err in admitting it.

Another bill recites that Vernon Smith was a witness for the state, and, after he had testified in reference to the game of dice alleged in the indictment, the court permitted said witness to testify that he played dice with the defendant on which money was bet, about the 1st of August of last year at the compress in the town of Hico, Hamilton county; the defendant’s objection being that there was no allegation in the indictment in reference to that game, the game alleged in the indictment being the one played about the 1st of May in which Billy Cole, Billy Rhoades, Vernon Smith, and the defendant were engaged. These objections were overruled by the court.

The court was also asked to instruct the jury that they could not convict the defendant upon proof of any game except the one alleged in the indictment, which the court refused to do. We are of opinion this testimony was inadmissible; but, inasmuch as it had been admitted, the court should have instructed the jury as requested by appellant. The game or playing which formed the predicate for perjury is alleged to have occurred with the parties named about the 1st of May at a different place and somewhere outside of the town of Hico from a mile to three miles. The game here inquired about was in August in the town of Hico at a compress. The judge qualifies this by saying he did not regard the date as of the essence of the matter, and would have admitted proof of any game in Hamilton county played with the parties named on any date within two years-before the defendant testified. The indictment charging perjury, and the state having selected the particular transaction about which the perjury was committed and which formed the basis of it, it would be bound to adhere to it, and besides there is nothing here to indicate that the game played in August was between the same parties, at least it is not so shown by the bill of exceptions or the qualification of the judge. He does recite Vernon Smith, the witness, was in both games; but that would indicate the other parties were not in the August game.

Another bill recites that, while Billy Cole was on the stand and being interrogated by the district attorney, he was asked how far it was from the town of Hico to the place the game was played, and the witness said he-did not know the distance, that it was in the nighttime, and he did not know how far it was; and after the district attorney asked the witness several leading questions, and he still testified that he did not know the distance, the court stated, in the presence and hearing of the jury, “It occurs to me, gentlemen, that this is an effort to evade the truth,” and then stated to said witness: “Unless-you give more definite answers, I am going to punish you. We cannot be browbeaten around in such way as this.” The appellant attempted to except to the remarks of the-court, and the court stated, “I will give you any exception you want, but I am not going to have the witness interfered with.” To all this matter defendant reserved exception for the reason the statement and remarks of the court were error and highly prejudicial to the-defendant, in that the statement conveyed to the jury the opinion of the court that the-witness was testifying falsely, and was a comment upon the weight of the evidence and the credibility of the witness, and was tantamount to the expression of the opinion of' the court to the jury that the game of dice was-played in Hamilton county and that the witness knew such fact; and the statement, “I will give you any exception you want, but I am not going to have the witness interfered with,” was an intimation to the jury that the defendant or his counsel was in some way responsible for the false testimony of the witness, and the statement of the court was calculated to and did influence and intimidate-the witness, as said witness after the statement by the court testified that the game was-played in Hamilton county, and he located the place on the plat or map exhibited to him-showing that the game was played in Hamilton county; he having before that time repeatedly said that he did not know the place where the game was played and could not locate it on the map presented to him. The court qualifies this bill, or explains it rather, by stating that: “The witness was unfriendly to the state and displayed a spirit of stubbornness and reluctance to testify to anything definite and specific, although his testimony before the grand jury was definite and specific as to the place where the game of dice was played and this testimony was presented to him to refresh his memory. The witness evaded the state’s questions as to where the game was played and refused to point out the place on a plat with which he was familiar. He was clearly testifying in a way which, if permitted, would make the courts a farce and mockery, and I regret that the necessity arose for me to reprimand him as I did. If the court has not the power to compel witnesses to tell the truth and it is error to do so, it is more the court’s misfortune than fault. However, I instructed the jury to dismiss what the court said to the witness from their minds and not to regard it as any comment on his credibility, and withdrew the occurrence from the jury and charged them to not consider it in any way against the defendant. I did not intend to reflect on counsel who made the objection. I cheerfully testify to their high character and uniform courtesy to the court and regret that the court’s action was construed by them as a reflection. I disclaim any such purpose. Furthermore, the witness was a state’s witness, and defendant’s attorneys made use of the incident referred to in the bill in argument as one going to weaken the weight to be given to the testimony and in that way turned it to advantage before the jury. With this explanation the bill is allowed.”

The following bill will be considered in connection with the one just mentioned. Tom Woods was a state’s witness in this bill, and after he had testified that the game of dice was played up the Bosque river about three miles from the town of Hico, the district attorney read, from a statement in writing that the district attorney claimed was the state ment of the witness before the grand jury, to the witness that the witness had testified before the grand jury that the game was played at a place about a mile from Hico, and the examination of said witness then proceeded as follows: “Q. Is that statement true or false? A. I could not say whether it was about a mile, or how far it was. Q. You made this statement, ‘This was up the river about a mile from Hico’? A. Yes, sir. Q. Is that statement true or false? A. I guess it is true or I wouldn’t have signed it. Q. You made another statement, ‘It was a little further up the river than the slaughter pen.’ Is that true or false? A. I thought it the same way as the other. The Court (to the witness): Do you know whether it is true or false? A. Yes, sir; I guess it is.” The witness was then asked to put a mark on the map as best he could, where the game was played, and witness said he could not do it. Then the court said to the witness: “If you don’t indicate where in your best judgment it was, I am going to punish you. Mr. Sheriff, take this man and put him in jail; I have fooled with him as long as I am going to.” And the sheriff took the witness from the stand and took him to the jail. Afterwards, in about an hour, the sheriff brought the witness back, and the district attorney talked to him and placed him on the stand. He then testified that the place where the game was played was in Hamilton county, and located the place on the map satisfactorily to the district attorney. Defendant excepted because the action and statement of the court was the expression of the court’s opinion that the game of dice was played in Hamilton county, and that the witness knew it, and the witness was attempting corruptly to testify falsely, and was an intimation on the part of the court that the defendant was guilty, and the action of the court was calculated to intimidate the witness and to influence him to testify that he knew where the game was played, and that it was- played in Hamilton county, whether said witness knew said fact or not, the testimony showing on the trial of the case that the Hamilton and Erath county line was all the way from a mile and a half to three miles from the town of Hico, and.the witness testifying the game was played at night, and that they did not really know how far it was from Hico, and they placed the distance all of the way from a mile to three miles from Hico. This bill is signed with the same qualification as the preceding bill.

The exceptions reserved to the remarks of the court, under the circumstances, are well taken. This matter has been frequently before courts of last resort, and has become the subject of reversals in a number of cases. For collation of authorities, see Mr. Branch’s Crim. Law, § 363; also, Deary v. State, 62 Tex. Cr. R. 352, 137 S. W. 699; Drake v. State, 143 S. W. 1160; McMahan v. State, 61 Tex. Cr. R. 489, 135 S. W. 558. In the latter case there are a great number of authorities collated, and the matter is gone into at some length. This particular portion of the opinion will be found on page 495 of 61 Tex. Cr. R., page 558 of 135 S. W. If the court shall deem it necessary at any time to punish recalcitrant witnesses, he should retire the jury so that they may not be affected injuriously to the cause of the accused. The statute (article 787, Revised Code of Criminal Procedure) interdicts the court expressing his opinion about testimony and limits him to ruling upon its rejection or admission without expressing his views about it. These bills clearly indicate that the court believed the witness was evading the truth and telling a falsehood, or maybe committing perjury; he believed it so strongly that he sent one of the witnesses to jail, and the bill recites after he came from jail he then proceeded to testify satisfactorily to the district attorney. This matter was not cured by the action of the court withdrawing the matter from the jury. The court is not rendered powerless to protect itself in the due administration of justice, or in protecting the dignity of the court against its officers or the witnesses; but in the enforcement of his authority and the upholding of the dignity of his court he must not jeopardize the rights of the defendant, as in this case was done by his comments before the jury and his action in the matter generally. If the court deemed it necessary to act as he did act at the time, he should have retired the jury and inflicted such punishment or taken such course as he saw proper and necessary to bring about the ends of justice.

Another bill recites that Robert Sawyer, over appellant’s objection, was permitted to testify that he saw the defendant, Henry Rodgers, and Tom Woods playing dice on which money was bet in a box car in the town of I-Iico, Hamilton county, and at a place other than that alleged in the indictment. The same may be said of this as was said with reference to the game played at the compress in Hico on the first of August. Upon another trial this testimony will not be permitted to go to the jury.

We are of opinion the court should have restricted the consideration of the jury to the game played about the 1st of May as set out in the indictment, and should have guarded the jury against convicting defendant on either of the other occasions mentioned, in which some of the witnesses swear they played with him. This matter, however, is deemed not necessary to be discussed further, and we make the above statement, as this testimony will not be admitted upon another trial. In the trial of the case, however, under this record, appellant’s rights should have been guarded at this point against conviction under those matters.

Appellant asked another instruction which we believe ought to have been given, to wit, unless the jury found that the offense was committed in Hamilton county, appellant should be acquitted. There was doubt left from the testimony as to whether the game was played in Hamilton or Erath county. It being an issue in the case, the matter should have been submitted specifically by the charge. The court did in a general way instruct the jury that if they should believe that the game was played in Hamilton county, and the other matters concurring, they should convict, but where the issue is made as in this case a general charge of that sort is not sufficient, especially when the appellant requested it he specifically charged. If the jury should have found from the evidence that the game was not played in Hamilton county, it would have been their duty to have acquitted. The grand jury of Hamilton county would have no authority to examine into a case of gambling unless the gaming had occurred in Hamilton county.

There are some other matters suggested for review, but we think enough has been said without taking up each item specifically. The court will understand from what has been said that the matters that are connected with those discussed will take the same course as those already reviewed.

The judgment is reversed, and the cause is remanded. 
      •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
     