#### CASTRO v. STATE.

No. 15592.

Court of Criminal Appeals of Texas.

Feb. 15, 1933.

Rehearing Denied May 3, 1933.

Second- Rehearing Denied May 24, 1933.

*212L. D. Stroud, of Beeville, for appellant.

Lloyd W. Davidson, State’s Atty., of Austin, for the State.

HAWKINS, Judge.

Conviction is for perjury; punishment being two years in the penitentiary.

- [1,2] In the indictment it was alleged in appropriate language that there was pending in the district court of Bee county an indictment charging appellant with burglary; that, when the ease was called for trial, he filed his application for a suspended sentence in which he swore that he had “never before been convicted of a felony in this or any other state.” Such statement was traversed by the averment that in truth appellant had theretofore been convicted of a felony in the “district court,” of Kleberg county, Tex.

The state offered in evidence a judgment of conviction for the possession of intoxicating liquor for the purpose of sale. The receipt of the judgment in evidence was opposed on the ground, among others, that it was a conviction in the “criminal” district court of Kleberg county, whereas it was averred in the indictment that the conviction was had in the “district” court of Kleberg county, and that the proffered judgment constituted such a variance as rendered it inadmissible. The trial court overruled the objection. By the terms of subdivision 28, art 199, R. O. S. 1925, there was created for the counties of Kleberg and others named, a criminal district court which should exercise all criminal jurisdiction theretofore vested in the district court of the Twenty-Eighth judicial district, and provided that thereafter the district court of. the Twenty-Eighth judicial district should cease to exercise criminal jurisdiction. There was then only one district court in Kleberg county with criminal jurisdiction, to wit, the “criminal district court.” Appellant therefore, under the terms of the law, had notice that when the words “district court of Kle-berg county” were used in describing a judg*213ment in a felony conviction it was bound to be a judgment in tbe criminal district court of said county. Tbe modern tendency of tbe courts bas been to bold tbat a variance to be material must be such as to mislead a party to his prejudice, and tbis doctrine bas been applied recently by tbis court on tbe question of “idem sonans.” See Jones v. State, 115 Tex. Cr. R. 418, 27 S.W.(2d) 653, in wbicb many authorities are cited, and from many of which quotations are set out and approved. It is clear tbat there could have been no surprise to appellant by reason of tbe claimed variance in the allegations of the indictment and tbe proof, and tbat be was in no manner misled in tbe premises.

When the judgment from tbe criminal district court of Kleberg county was offered in evidence, it was also objected to on tbe ground that it did not show a conviction for a felony. The objection was based upon a recital in tbe judgment that appellant was adjudged to be guilty of tbe “possession of intoxicating liquor.” Appellant correctly says tbat under our present statute (article 666, P. G. 1925) it is not a felony to possess intoxicating liquor unless same is possessed for tbe purpose of sale. The record shows tbat tbe judgment was based upon an indictment wbicb charged tbat appellant possessed the liquor for tbe purpose of sale, and tbe verdict found appellant guilty as “charged in the indictment.” The judgment does not describe the offense completely, but such defect does not render tbe judgment void. The verdict assessed tbe penalty at five years’ confinement in the penitentiary, and recommended tbe suspension of the sentence. Tbe judgment directs appellant’s imprisonment in the penitentiary for five years, but suspends the execution of tbe sentence and directs tbat appellant be released upon entering into recognizance. Hill v. State, 92 Tex. Or. R. 312, 243 S. W. 982.

Tbe state introduced a copy of the judgment of conviction in Kleberg county certified to by the clerk of tbe criminal district court on the 22d day of May, 1931. That copy was discovez'ed to be incorrect in some particulars. Tbe clerk was recalled to the stand and explained tbat be made tbe first copy in response to a telephone call from tbe sheriff of Bee county, and, being pressed for time, tbe witness hurriedly took a stereotyped forqi and filled it out without a very close check of the judgment itself. He then produced a second certified copy of tbe judgment of conviction in Kleberg county wbicb was certified to by the clerk on tbe 12th day of April, 1932, and wbicb witness swore was a correct copy. Tbe clerk testified that he discovered the inaccuracy in the first copy when the question came up during tbe trial. The court permit-1 ted tbe state to withdraw tbe first copy of tbe judgment, and admitted in evidence tbe second copy referred to by tbe clerk. Tbis proceeding was objected to by appellant for many reasons, and exception reserved to the action of the court. Later appellant himself offered in evidence the copy of tbe judgment which the court had permitted to be withdrawn, and excepted to tbe action of tbe court in refusing to permit him to reintroduce it. Under tbe circumstances stated we discover no error in the action of the court in the particulars mentioned.

What has been said disposes of bills of exception Nos. 1, 2, and 3.

Tbe state’s evidence was to the effect that, when tbe burglary case against appellant in Bee county was called for trial, the application for a suspended sentence was presented to tbe clerk of tbe district court by appellant. The application was not prepared by tbe clerk; it was delivered to him with everything written in except appellant’s name under tbe style of tbe case, which the clerk filled in. The clerk testified tbat tbe statement in the application to tbe effect tbat appellant had not theretofore been convicted of a felony was in tbe application at the time appellant was sworn thereto; that at the time tbe oath was administered to appellant by the clerk the interpreter for tbe court was also present. It does not appear from tbe state’s evidence that tbe application for suspended sentence was read over to appellant by the interpreter under the direction of the clerk, but that, after appellant signed the affidavit, the bath administered to him by the clerk through the interpreter was tbat “You do solemnly swear that tbe statements contained in tbis application for a suspended sentence in tbis case are true and correct, so help you God,” to which appellant answered “Yes.” The testimony of tbe court interpreter was, in substance, tbat tbe first be remembered about tbe transaction was tbat be was instructed to call appellant to tbe clerk’s desk, which he ¿id, and that appellant signed tbe application for suspended sentence; that he interpreted the oath administered to appellant by the clerk.

Appellant did not testify. His attorney gave evidence as follows: “ * * * Just as we were going into tbe trial, Simon Castro asked me if he could get a suspended sentence. I told him that I didn’t know that be could make tbe proper application. * * * He says, ‘Well, I believe I will make it if I can.’ He talked in very poor English, and I did most of the talking. When I found out what he wanted, I got a blank, — just a blank form — and partially filled it out in pencil. * * * He then took it and went to the clerk, and he asked him to sign it, and I reckon be did. Before going to the clerk, I asked him if he had ever been convicted of a felony, and he said he didn’t know what tbat was — ■ said (What is that?) ‘Well,’ I said, ‘have you ever been sent to tbe penitentiary before anywhere?’ and he said ‘No, but I paid a fine.’ That was all I said to him. * * • * Simon *214Castro did not tell me that lie had received a! suspended sentence in the District Court at Kingsville. Had he called it to my attention I would have investigated the matter and acted according to my knowledge of the law. * » * The defendant talked to me in English a little bit, and, when I understood what he wanted, I got an application blank and partially filled it out. I asked him if he had ever before been convicted of a felony, and he asked me what that was, and I said, ‘That means that you’ve never been sent to the penitentiary,’ and he said that he had never had anything done to him except to have to pay a fine of 7⁄850'’ — and I said, ‘Well, that wouldn’t make any difference.’ I don’t know in what court he had to pay that fine, — I never paid any further attention to it. * * * I expect that Simon thought he could get two suspended sentences at the same time; but * * * I don’t know what he thought because he didn’t mention it to me. He did not tell me at that time that he had been convicted of a felony in Kleberg County on February 5th, and given a five year suspended sentence.”

Under the issue raised by the testimony of appellant’s counsel, the court instructed the jury as follows: “You are further instructed that before you can convict the defendant Simon Castro in this ease of the offense of perjury, you must believe from the evidence beyond a reasonable doubt that the said Simon Castro knew that his application for a suspended sentence contained the statement that he had never before been convicted of a felony in this state or in any other state. If you do not believe that he knew his said application for a suspended sentence contained such statement, or, if you have a reasonable doubt thereof, you will find the defendant not guilty.”

•The finding of the jury was against appellant on the matter. The jury found that appellant knew the application contained the statement upon which perjury was assigned.

Bills of exception Nos. 5 and 6 bring forward complaint of the refusal of two special charges. The instruction given as above shown in the main charge was upon the same issue as the requested charges. Their refusal presents no error.

We have examined bills of exception 7 and 8, and are of opinion they present no error. We presume appellant’s counsel reached the same conclusion, as the points presented in said bills are not briefed.

Appellant has briefed a question sought to be raised in what is designated in the transcript (page 20) as “Special Charge No. 3.” Some of the refused charges are brought forward by bills of exception which supply the formal requisites omitted from the charges themselves, but special charge No. 3 is not brought forward in a bill. The said special charge recites that “defendant requests the court to charge the jury as follows,” then follows the instruction desired. The only notation on it over the judge’s signature is, “Refused, to which defendant excepts.” Before the refusal of a special charge may be considered by this court, it must be shown either from the charge itself or the judge’s notation thereon, or from the recitals in a bill complaining of its refusal, that it was presented to the trial court before the main charge was read to the jury. Such is the requisite of the statute. Articles 658, 659, and 660, C. C. P. (1925). See Archbell v. State, 97 Tex. Cr. R. 337, 260 S. W. 867, in which many cases are cited. Later cases are Weddington v. State, 105 Tex. Cr. R. 648, 290 S. W. 178, and Hill v. State, 108 Tex. Cr. R. 629, 2 S.W.(2d) 267. There is nothing in the special charge advising this court at what time it was requested.

Having considered all questions properly before this court and believing no reversible error appears, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, Judge.'

We do not think the testimony of appellant’s attorney enough to cause us to set aside this conviction and reverse this case for lack of sufficient testimony. He said, in effect, that before making the affidavit for suspended sentence, in a pending burglary case, he asked appellant if he had ever been convicted of a felony, to which appellant replied that he did not know what that was, and said, “What is that?” and witness said, “Well,' have you ever been sent to the penitentiary before, anywhere?” to which appellant replied, “No, but I have paid a fine.” Following which conversation witness testified that appellant signed and swore to the affidavit in which was a statement that he had never before been convicted of a felony. This statement was shown to be false.

Appellant did not testify. While shown to be a Mexican with but a limited knowledge of English, he had been in the courts only two months before his trial for burglary, in which former ease he made application for suspended sentence, which he obtained; the contents of said application furnishing the basis of this prosecution for perjury. -What was then said to him, or explained or told him, we do not know, but it appears he was given five years in the penitentiary for possessing intoxicating liquor for purposes of sale upon which sentence was . suspended. Regardless of what the attorney may have said to appellant when he made the application on which this perjury is based, the question of whether he knew and understood its contents and made the false statement willfully and deliberately, was a jury question. The jury were fully and plainly told in the *215charge of the court that they could not convict appellant if they had a reasonable doubt as to whether he made such false statement by inadvertence or mistake. The jury had before them the testimony regarding appellant’s criminal record. They were aware of the fact that there was no testimony before them as to what appellant had had explained' to him in his other trial, in which he asked for a suspended sentence, or his otherwise understanding of the meaning of the words “convicted of a felony.”

It was thus before the jury trying appellant in this ease that he had been twice pri- or thereto tried for felonies; in both which instances he had been convicted, one conviction being reversed on appeal. Appellant would be.held to know the law!

Suppose the trial court had told the jury in his charge that, if they found appellant did not know what was meant by the expression “convicted of a felony,” and if they found from the testimony that had he so known he would not have made the affidavit, then they should acquit, and the jury after having had such charge given them should have found appellant guilty, it would be evident that this court would have no right to set aside the verdict for lack of testimony. The state’s ease cannot be prejudiced because of appellant’s failure to have his theories of his defense fully submitted. We find ourselves unwilling to assent to the views expressed by appellant in his motion.

We still are of opinion that there was no variance between the indictment and the proffered testimony as to the. fact that appellant had filed his application for suspended sentence in the criminal district court of Kle-berg county,' the indictment in this case having charged that he was then being tried in a district court. We think necessarily every criminal district court is a district court.

Being unable to agree with appellant, the motion for rehearing will be overruled.

On Application to File Second Motion for Rehearing.

MORROW, Presiding Judge.

In the request that the court consider hia second motion for rehearing, appellant assails the soundness of the conclusion reached in the motion for rehearing that there was no variance available to the appellant growing out of the fact that in the indictment charging him with an offense in Kleberg county it was stated that the indictment was returned to the district court of that county; it appearing that he was tried in the criminal district court of said county. We are constrained to adhere to the conclusion stated in the original opinion and in the opinion on motion for rehearing. We will add, however, that in the Revised Civil Statutes 1925, vol. 1, p. 89, art. 199, subd. 28, there is provision for the continuation of the criminal district court for the counties of Nueces, Kleberg, Kenedy, Willacy, and Cameron, “which shall have and exercise all of the criminal jurisdiction now vested in and exercised by the district court of the Twenty-eighth Judicial District of Texas.” The act also provides that the district court of the Twenty-Eighth judicial district, composed of the counties of Nueces, Kleberg, and Kenedy, and the district court of the 103d judicial district, composed " of the counties of Willacy and Cameron, shall cease to exercise criminal jurisdiction in either of the counties mentioned.

[ 10] For the reasons stated in the previous opinions, the record calls for an affirmance of the judgment. However, the legislative provisions mentioned above are not regarded as of weight against the result of the appeal heretofore declared for the reason that it is understood that under article 5, § 8, Constitution of Texas, there is conferred upon the district court jurisdiction of criminal cases in the following words: “The district court shall have original jurisdiction in all criminal cases of the grade of felony.”

The conceded power of the Legislature to create other courts having jurisdiction in criminal cases of the grade of felony has not been construed to strip the district • courts created under the Constitution of the inherent jurisdiction to try cases of the grade of felony. Throwing some light upon the subject is the case of Hull v. State, 59 Tex. Cr. R. 607, 100 S. W. 403.

From the case of Ex parte Coombs, 38 Tex. Cr. R. 648, 663, 44 S. W. 854, 861, the following quotation is taken: “Wherever the constitution vests judicial power, it must) so remain, and the legislature has no right to invade it or suspend it, unless express authority is given in that instrument. The legislature has no authority to change the organization of the judicial system; nor can that body, under the guise of creating ‘other courts,’ devest the district court or the justices of the peace courts of their constitutional jurisdiction.”

The application to file-a second motion for rehearing is denied.