9 S.W. 614
PIPES 
v. 
STATE.
Court of Appeals of Texas.
October 31, 1888.
        Appeal from district court, Freestone county; SAMUEL R. FROST, Judge.
        Indictment of Isaiah Pipes for perjury.
        Asst. Atty. Gen. Davidson, for the State.
        HURT, J.
        This is a conviction for perjury. Appellant excepted to the sufficiency of the indictment upon several 
grounds, none of which, in our opinion, were well taken. It appears from the indictment that the grand 
jury were investigating the facts attending a fight between one Adam Durham and the appellant; that 
appellant was a witness before the grand jury, and testified as to certain facts relative to the fight, which 
were quite material; that certain statements made by appellant in his testimony before the grand jury 
were assigned for perjury. It is contended by appellant that, he being an interested party in such 
investigation, though he may have sworn falsely to material facts, still he was not guilty of perjury; 
because the indictment contains matter which is a legal defense to the prosecution; because it is not 
alleged that appellant voluntarily appeared and testified before the grand jury. Are these valid objections? 
The first is, if sustained by the record; which is not the case. The second is not. Another position is 
assumed, the decision of which will determine those relied upon. It is that the statement was not made 
under circumstances in which it was required or demanded by law. The position is that, as defendant 
made the statement assigned for perjury in an investigation in which he was interested, that he was 
testifying against himself, and hence perjury could not be assigned upon his testimony. To be perjury the 
oath must be administered under circumstances in which an oath is required by law. Pen. Code, art. 237. 
Were the circumstances in this case such as that the law required the oath? Evidently they
Page 615
were. Code Crim. Proc. art. 407. The grand jury was regularly impaneled; was in session, and was 
investigating a certain transaction in which the law may have been violated. Before this body the appellant 
appeared, whether voluntarily or not does not appear. The grand jury proposed to examine him touching 
his knowledge of the facts of the said transaction. Before entering upon the investigation of the appellant 
as a witness, the law required that he be sworn. Hence the oath was required by law. But it is contended 
that the appellant was an incompetent witness. This is another question which will be noticed briefly. This 
we take to be a correct proposition: If the witness be illegally admitted to testify, and he swears falsely, 
such swearing will be perjury. Montgomery v. State, 10 Ohio, 221; Van Steenbergh v. Kortz, 10 Johns. 
166; State v. Whisenhurst, 2 Hawks, 458. Says Mr. Bishop: "The witness need not have been brought into 
court by a subpœna, nor need he be compelled to testify; for if he does give evidence under oath, it is the 
same whether reluctantly or voluntarily. And if a party becomes a witness for himself, when his testimony 
is not by law receivable, he may still commit the crime of perjury; though the contrary seems to have 
been held in one case." 2 Bish. Crim. Law, § 1019. But let us suppose that a witness is forced to testify 
before a grand jury or court to facts tending to criminate himself, and perjury is attempted to be assigned 
upon statements made by him under such state of case, could the prosecution be legally sustained? We 
think not. This state of case, however, does not appear, and if those were the facts in this case, it not 
appearing in the indictment, appellant should have shown the facts. There is no statement of facts in this 
record, and it will not be presumed that the grand jury violated the plain provisions of the law, and 
compelled the accused to criminate himself. We find no error in the record, and the judgment is affirmed.