author: DAVIDSON, J. PRENDERGAST, P. J., and HARPER, J.

text:
    COX v. STATE.
    (No. 3487.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.)
    1. Witnesses <§=>406 — Impeachment.
    In a prosecution for slander against one who called a female a whore, accused testified that he had had intercourse with the prosecu-trix. Thereafter accused was charged with perjury. A witness testified that the prosecutrix admitted to her that she had intercourse with a'named man. Held, that the witness could not be contradicted by evidence of - statements by the man named that he never had any improper relations with the prosecutrix.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. <§=>406.]
    2. Pebjuby <§=>33 — Evidence—Issues.
    In a prosecution for slander brought against one who stated that a young woman was no better than a whore, accused testified that he had had intercourse with the woman. The issues in the slander case were the truth of the statement and the utterance of the words. Held that, in a subsequent prosecution for perjury, proof that the defendant in the slander case uttered the slander as alleged was not essential to a conviction; accused's, testimony at all events being material to the issues.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. <§=>33.]
    3. Pebjuby <§=>25 — Indictment — Sufei-ciency.
    An indictment for perjury must show the materiality of the false testimony, and, where it averred that, in a prosecution for slander in charging a female with being a whore, accused falsely testified that he had sexual intercourse with her, and that in the slander case truth of the charge was one of the issues, it was sufficient.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. <§=>25.]
    4. Pebjuby <§=>33 — Pbosecution—Evidence.
    In a prosecution for perjury the evidence should clearly show the materiality of the alleged false testimony.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. <§=>33.]
    5. Witnesses <§=>.360 — Cboss-Examination.
    Accused, who was charged with falsely testifying that the prosecutrix in a slander case permitted sexual intercourse, offered witnesses to show that prosecutrix was not a virtuous female. Held, that it was permissible to show on cross-examination of these witnesses that they attended church functions and social gatherings with the prosecutrix.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §{⅜ 1165, 1166; Dec. Dig. <§=>360.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Callahan County p Thomas L. Blanton, Judge.
    Ernest Cox was convicted of perjury, and he appeals.
    Keversed and remanded.
    J. M. Wagstaff and S. P. Hardwicke, both of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The indictment alleges a trial in the county court on an information for the offense of slander spoken of and concerning one Minnie Simpson by Ethridge in the following language, to wit:

“I would not be caught in daytime with that girl for $1,000. She is noth]rug but a damned whore.”

It was alleged in the .county court in the information that appellant was sworn and testified as a witness in the case, and that he testified that he had had sexual intercourse with Minnie Simpson beiind her father’s store in Potosí. The indictment possibly may be sufficient to allege the materiality of the testimony, but it is doubtful. I will not write, however, upon that, inasmuch as my Brethren in the companion cases of Reed v. State, 174 S. W. 1065, and Cutbirth v. State, 174 S. W. 1066, this day decided, have held the indictment sufficient.

1. There are several attacks made on the record because there was no evidence introduced on the trial showing that Ethridge, the defendant in the slander case, had ever used the language imputed to him in the information in the county court; in fact, the statement of facts does not show that Ethridge ever made the statement. Without this, appellant’s testimony, under this indictment, would not be material. His testimony, if material, in the county court arose out of the fact that it was germane to the allegation that appellant had said of Miss Simpson that she was a whore, and, if he testified in the county court, it was in aid of appellant’s side of the case, and to sustain his statement that she was a whore. If Ethridge did not make the statement that Miss Simpson was a whore, then appellant’s testimony would not be material. It is a well-settled rule, under the decisions wherever that question has come, that the indictment must not only allege the materiality of the testimony, but it must also be shown as a prerequisite to conviction that the testimony was material. Mr. Branch thus tersely and correctly states the rule:-

“If the statement on which perjury is assigned is not shown by the evidence to be material, conviction will not be sustained.” Branch’s Crim. Law, § 647; Garrett v. State, 37 Tex. Cr. R. 204, 38 S. W. 1017, 39 S. W. 108; Pyles v. State, 47 Tex. Cr. R. 435, 83 S. W. 811; Liggett v. State, 47 Tex. Cr. R. 450. 83 S.. W. 807; Maroney v. State, 45 Tex. Cr. R. 524, 78 S.W. 696; McVicker v. State, 52 Tex. Cr. R. 508, 107 S. W. 834; Wilson v. State, 27 Tex. App. 47, 10 S. W. 749, 11 Am. St. Rep. 180; Lawrence v. State, 2 Tex. App. 479.

In the Garrett Case, supra, it was said:

“The authorities require that the indictment shall show the materiality of the alleged false testimony, or shall allege that the same was material ; and in either event, as we understand it, the facts must be proved which show the materiality of the alleged false testimony. If the assignment is based on false testimony delivered in a judicial proceeding, so much of the record in that proceeding must be shown as to authorize the court to declare that the testimony alleged to be false was material to some issue in the case. Mr. Bishop says: ‘The allegation of materiality must also be proved. It is not enough that the testimony was actually admitted; yet it suffices that the indictment sets out the facts whence the materiality judicially appears. Where it does not, the course is to prove all or so much less than all of the pleadings and evidence brought forward at the former trial as will duly present the question; whereupon the court, not the jury, will decide,- as of law, whether or not what the defendant is shown to have testified to therein was material.’ See 2 Bishop’s New Crim. Proc. § 936. Our own court has followed the principle here laid down. See Lawrence v. State, 2 Tex. App. 479, and Wilson v. State, 27 Tex. App. 47 [10 S. W. 749, 11 Am. St. Rep. 180].”

Presiding Judge White delivered the opinion. in the Wilson Case, supra, and the héad-notes state correctly the rule as follows:

“It is essential in a perjury case not only that the indictment shall allege that the court before which the judicial proceeding in which the perjury is charged to have been committed had jurisdiction of such judicial procéeding, but that fact must be established by the proof.”

In the case from which that proposition was stated it was held that the evidence was not sufficient because the complaint which formed the predicate of the information was not introduced, in evidence. Judge White said:

“Without a complaint an information would be wholly invalid — would confer no jurisdiction upon the court, and would be worthless for any purpose. ⅜ * ⅜ It follows, then, that in order to sustain an allegation of judicial proceeding by information, not only must such information be introduced in evidence, but the complaint upon which it is based or founded must be also introduced.”

So in this case the basis of the prosecution was that appellant committed perjury in the county court in a trial where Ethridge was charged with the slander of Miss Simpson by calling her a “damned whore.” It was upon this issue, if upon any issue in the county court, that that case was tried, if, in fact, it was tried. The information and complaint in the county court were introduced in evidence, but these are all the proceedings of the county court which were introduced. N.o witness testified in this case that Ethridge ever made any such statement. Theo entire record is singularly and strangely silent upon that question. If it was proved in the county court that Ethridge made the statement, and that in support of his contention, or the truthfulness of his statement imputed to him, appellant appeared and testified that he had had intercourse with Miss Simpson, his testimony would be material, because it went directly to the issue. If Ethridge made that statement, it should have been proved on the trial of this case in order to show the materiality of appellant’s testimony in that he stated he had had intercourse with Miss Simpson. If Ethridge made no such statement as charged in the information, then appellant’s testimony would not be material on the question, for in that event there would be nothing before the court. In a perjury case the alleged false statement must be material, not only alleged so in the indictment, but it must be so proved. The strength of the materiality would not be questioned, but the ’fact that it was material was the paramount question. Unless it was material, the state had no case, for perjury is based upon the fact and the law which says that the alleged false testimony must be material. Without showing that Ethridge had made that statement, the state failed to show the materiality of appellant’s testimony that he had had intercourse with Miss Simpson. It must be remembered that the materiality in a perjury indictment bears upon the issue charged in the indictment, and not on the general broad proposition he may have sworn a lie or stated a falsehood. That falsehood, if it was one, must bear upon the issue stated in the indictment, and must be material to that issue. The mere allegation of an issue in an indictment does not prove itself; it may be sufficient as pleading, but the pleading must be proved to be true, and by two witnesses, or one witness with strong corroborating testimony. If this record had shown that Ethridge made the statement imputed to him, we would have a different question, but, inasmuch as this record does not show that Ethridge ever made such statement, the state has failed to show the materiality of the alleged false evidence of appellant. This is sustained by all these cases that I have heretofore cited.

2. Miss Euller was a witness to impeach Miss Simpson. Miss Simpson denied she ever had intercourse with appellant or any one else. Miss Puller testified that some three or four years prior to the trial of this case Miss Simpson told her that she had intercourse with Harry Self three times on one trip. The state then introduced some witnesses by whom it proved that Harry Self had testified in the county court that he had never seen anything improper in the conduct of Miss Minnie Simpson. The court admitted this over the many objections urged by appellant. This was error. This was not impeaching testimony so far as Miss Puller was concerned. She had not stated anything one way or the other what Self had said to her. She had testified, however, that Miss Simpson had informed her that she had intercourse with Self. Self was not produced as a witness, nor offered to be produced as a witness, although he could have been had before the court, but even had he been before the court, he could not have impeached Miss Puller. No predicate had been laid for it, and no conversation was shown or attempted to be shown that ever occurred between them. It was hearsay evidence pure and simple, and to make the error the more glaring the court verbally instructed the jury that this testimony was admitted upon the question of the credibility of Miss Fuller. By no possible legal construction could it affect the testimony of Miss Fuller. Judge Harper, in the Reed Case, supra, holds this to be error, and correctly so, and it is unnecessary to discuss this further. In this connection it might be stated they were permitted to prove that Self had testified in the county court that he had never had intercourse with Miss Simpson. This was a part of the same matter, and it was erroneously admitted under what has been said.

3. Another complaint is urged against the admission of testimony by the state, over proper objection, that some of the witnesses had attended church gatherings and social functions which Miss Simpson also attended. The court seems to have admitted this testimony on the theory it tended to show the extent and character of knowledge possessed by witness as to general reputation of Miss Simpson. We do not believe this was admissible. The state introduced evidence of good character and reputation of Miss Simpson, but this character of testimony was not admissible for that purpose, and upon another trial it should not be permitted to go to the jury.

4. Another bill complains that the court erred in permitting Miss Simpson to testify that she submitted to an examination by some physicians to determine the fact that she was a virgin. The testimony of the physicians was admitted, and Miss Simpson also testified that the examination was made. The physicians testified as to their conclusion or opinion about that question favorably to the state, and the state was permitted to show by the girl that she willingly underwent or submitted to the examination by these doctors. This ought not to have been admitted. Her willingness was a condition of the mind on her part which ought not to be permitted to influence the jury against the defendant. He was in no way responsible for the condition of her mind and knew nothing of it. It was not a fact to be considered by the jury in passing on appellant’s attitude of guilt or innocence, and was not a circumstance to be weighed against him. It was in the nature of a self-serving statement and act or mental condition upon the part of the witness unknown to appellant and which could be in no way binding on him.

There are other questions in the ease of more or less moment, some of which the writer thinks reversible, but my Brethren have taken the other view, and I do not care to write further in this opinion.

For the errors indicated, the judgment is reversed, and the cause remanded.

PRENDERGAST, P. J., and HARPER, J.

(concurring).

We agree to the reversal of this case on the grounds stated in the Reed and Cutbirth Cases this day decided, but we do not agree to the remainder of the opinion in this case, and respectfully dissent therefrom. -We do not think it was necessary to show in this case whether or not Ethridge was guilty of the slander of Miss Simpson. That issue was tried and disposed of in the county court, and on appeal to this court the judgment was affirmed. Ethridge v. State, 169 S. W. 1152. And it was not proper nor necessary to determine in this case whether or not Ethridge used the language alleged, and whether or not he was guilty of slander. ¿Appellant was on trial under an indictment in which he was charged with having perjured himself by swearing falsely on that trial, and the issue on this trial was whether or not he had in that trial sworn to a certain state of facts, and, if so, was his testimony false, and material to the issue then on trial. The indictment in this case alleged:

“That Ernest Cox, on or about the 21st day of April, one thousand nine hundred and fourteen (1914), and anterior to the presentment of this indictment, in the county of Taylor and state of Texas, did then and there unlawfully before a regular term of the county court of Taylor county, Tex., holden in and for said county, and then and there in session in said county, Hon. E. M. Overshiner,, judge of said court, presiding, and in a certain criminal judicial proceeding, of which the said court then and there had jurisdiction, wherein the state of Texas was plaintiff and Plenry Ethridge was defendant, and wherein Plenry Ethridge was duly charged by information with the offense of slander spoken of and concerning one Minnie Simpson in the following language, to wit: T would not be caught in daytime with that girl for $1,000. She is nothing but a damned whore.’ And wherein issue was duly joined between the said state of Texas and the said Plenry Ethridge came on to be tried in due form of law., and was then and there tried before the said judge and a jury in that behalf duly sworn, and the said Ernest Cox then and there appeared as a witness in behalf of the said Plenry Ethridge, defendant, and was then and there duly and legally sworn, and did take his corporeal oath before the said court and jury as a witness to testify in said cause, which said oath was then and there required by law and' necessary to the ends of public justice, and which said oath was then and there administered to him, the said Ernest Cox, by Hon. E. M. Overshiner, judge of said court as aforesaid, then and there having sufficient and competent authority, under the law, to-administer the said oath to the said Ernest Cox in that behalf, and that upon the trial of said issue so joined between the said parties aforesaid it then and there became and was a material question and inquiry whether or not the said Minnie Simpson was a virtuous and chaste woman, and whether or not the said Henry Ethridge had spoken the truth of and concerning the said Minnie Simpson, and it then and there became and was a material question and inquiry whether or not the said Ernest Cox had sexual intercourse with the said Minnie Simpson behind her father’s store in Potosi, and the said Ernest Cox, being so sworn as aforesaid, then and there, on the trial of said issue, upon his oath as aforesaid, did falsely, willfully, and deliberately, before the Hon. E. M. Overshiner, judge as aforesaid, and before the jurors so sworn as aforesaid, depose, state, and testify, amongst other things, in substance and in effect following, that is to say: That he, the said Ernest Cox, had had sexual intercourse with the said Minnie Simpson behind her father’s store in Potosi, thereby intending and meaning that he, the said Ernest Cox, had had sexual intercourse with the said Minnie Simpson, the said alleged slandered female, and that the said Minnie Simpson was not a virtuous and chaste woman, which said statement so made by the said Ernest Oox was then and there material to the issue in said cause, whereas, in truth and in fact, the said Ernest Oox, did not have, and had not had, sexual intercourse with the said Minnie Simpson behind her father’s store in Po-tosi, and whereas, in truth and in fact, the said Ernest Cox had never at any time had sexual intercourse with the said Minnie Simpson, and which said statement so made by the said Ernest Cox 'as a witness in said case in the manner and form aforesaid was deliberately and willfully false, as he, the said Ernest Cox, then and there well knew.”

The issues made by this indictment are made plain, and one of the issues under this indictment is not whether or not Ethridge made the alleged slanderous statement, but the issue is: Was he, in fact, tried in the county court with having made such statement, and was the testimony of appellant material to the issue tried in the county court. Judge Overshiner testified on this trial, among other things:

“I am county judge of Taylor county. I was acting as county judge in my official capacity during the months of March, April, and May, 1914. I was county judge when Henry Eth-ridge was tried in my court charged with slander. I presided at that trial. I knew the defendant, Henry Ethridge, at that time. He was present at the time he was tried. lie was tried before me as county judge, and before a jury composed of six men. The jury was sworn and impaneled to try the case of State of Texas v. Henry Ethridge. I don’t remember the day of the month that that case was tried, but my recollection is that it was at the April term of the county court, beginning the third Monday in April. The information charging the defendant, Henry Ethridge, with slander, was read to the jury, and the defendant, Henry Ethridge, pleaded not guilty to that information.
“The defendant, Ernest Cox, was present at that trial. I know Ernest Cox. He is in the courtroom at this time. That is him sitting over there. He appeared as a witness in the trial of the case of State of Texas v. Henry Eth-ridge. He was legally and duly sworn by me as county judge. I had all of the witnesses to come in and hold up their right hands, and administered substantially the following oath to them: ‘Do you and each of you solemnly swear that your testimony in the case now pending before the court shall be the truth, the whole truth, and nothing but the truth, so help you God.’ The defendant, Ernest Cox, held up his hand and took that oath with the other witnesses. After being so sworn, he testified on behalf of the defendant, Henry Ethridge, in that trial. Henry Ethridge, at that time, was tried before myself and a jury in the county court. The defendant, Ernest Cox, testified at that trial that he had had sexual intercourse with Miss Minnie Simpson. He testified that he had had intercourse with Miss Simpson behind her father’s store, in Potosi, Tex. He stated that, to the best of his recollection, that that act of intercourse occurred in the summer of 1913.”

The state then introduced, the complaint and information, but, as they both charge the same, we insert only the information:

“H. Rob Keeble, county attorney of the county of Taylor, state aforesaid, in behalf of said state, presents in the county court of said county at the February term, A. D. 1914, of said court, that Henry Ethridge, late of the county of Taylor, on or about the 24th day of January, A. D. 1914, and prior to the filing of this information, with force and arms, in the county of Taylor, 'in the state of Texas, did then and there orally, falsely, and maliciously and falsely and wantonly impute to one Minnie Simpson, then and there an unmarried female in this state, a want of chastity, in this, to wit: He, the said Henry Ethridge, did then and there, in the presence and hearing of Horace Holly, Carl Putnam, and divers other persons, falsely, maliciously, and wantonly say of and concerning the said Minnie Simpson-: T would not be caught in daytime with that girl for $1,000. She is nothing but a damned whore’ — against-the peace and dignity of the state.”

The record then discloses that appellant in open court made the following agreement:

“We admit, if the court please, that the affidavit and information here were duly filed in the county court of Taylor county in the Henry Ethridge Case, and that these are the ones, and that the trial of Henry Ethridge was had on this complaint and this information, and that the county court was held at the proper place.”

By other witnesses it is shown that appellant did testify on the trial of Ethridge in the county court that he, the said Ernest Cox (appellant), had had sexual intercourse with the said Minnie Simpson behind her father’s store in Potosi.

Miss Minnie Simpson swears that Ernest Cox never at any time or place had carnal knowledge of her. Dr. Alexander, Dr. Armstrong, and Dr. Estes testify that they made a physical examination of Miss Minnie Simpson, and that she had never had intercourse with any man; that she was a virgin. Many witnesses testify that the reputation of Miss Simpson for virtue and chastity is good; also her reputation for truth and veracity.

The allegation of slander was that Eth-ridge had said Miss Simpson was a whore. To prove that fact, appellant took the stand and swore he had had sexual intercourse with the girl. The materiality of such testimony is patent to any one, and it would not be material whether or not Ethridge made' the statement. He was charged with having made the statement, and on trial of that case, in order to aid Ethridge in proving that she was a whore, appellant took the stand and swore he had had sexual intercourse with the girl, and on the trial of this case the issue was not whether or not Ethridge had made the statement that Miss Simpson was a whore, but the issue was: Did appellant on that trial swear that he had had carnal intercourse with the girl, and was it false if he did so testify-, and was it material to the issue on trial in the slander case? And it would not be material whether the defendant in the slander case was guilty or innocent. While this record bristles with, evidence that Miss Simpson was not a whore, yet, if it had been shown in the trial of the slander case that she was, and yet on that trial appellant falsely testified he had had intercourse with the girl, he could and should be convicted of perjury. We thoroughly agree with the rule of law quoted by Judge Davidson from Mr. Branch on Criminal Law:

“If the statement on which perjury is assigned' is not shown by the evidence to be material, conviction cannot be sustained.”

But the materiality of the assignment of perjury is shown by the evidence in this ease, ■ as is manifest by that portion of the record and testimony hereinbefore copied, and we think any one will readily recognize that when a trial is had and the issue being tried is whether or not a given female “was a whore,” evidence by a man that he had had intercourse with the woman would be material to that issue, and have a strong tendency, if true, to show the truth of the charge. We also agree to what is said in Garrett v. State, 37 Tex. Cr. R. 203, 38 S. W. 1017, 39 S. W. 108:

(1) “The authorities require that the indictment shall show the materiality of the alleged false testimony, or shall allege that the same was material.”

The indictment in this case (hereinbefore copied) shows that the alleged statement was material to the issue, and also alleges that it was material.

(2) “In either event, as we understand it, the facts must be proved which show the materiality of the alleged false testimony. If the assignment is based on false testimony delivered in a judicial proceeding, so much of the record in that proceeding must be shown as to authorize the court to declare that the testimony alleged to be false was material to some issue in the ease.”

In this ease the complaint and information was introduced; Ethridge’s plea of not guilty is shown, and that a trial was had before Judge Overshiner in the county court on the issue of whether or not the alleged slander was uttered, and whether or not it was true if uttered. As before said, the issue of Ethridge’s guilt or innocence would not be an issue in this case, and the merits of that case should not be again tried on this trial. Whether or not he was guilty or innocent would not affect the guilt or innocence of appellant under this indictment. Again, we say we agree to what was said by Judge White in Wilson v. State, 27 Tex. App. 47, 10 S. W. 749, 11 Am. St. Rep. 180, quoted by Judge Davidson, but it has no application to this case, for in this case both the complaint and information were introduced in evidence, and they clearly show that the issue was in the county court, and doing so we think any one can see that the testimony of appellant on that trial was material to the issue involved in that case.

We do not deem it necessary to review the other authorities cited by Judge DAVIDSON, but, if one will read them, we think it will be shown that the record in this case (that portion of it herein copied) shows that they and eachi of them hold the indictment sufficient and the testimony ample, if the state’s testimony is believed, that appellant gave the alleged false testimony, and that it was false, and also shows the materiality of the alleged false testimony to the issue tried in the county court.

As witnesses were permitted to testify to isolated extraneous matters tending to show that Miss Simpson was not a virtuous female, we think it permissible to show on cross-examination of these witnesses that they had attended church gatherings and social functions with Miss Simpson. This evidence would be admissible to rebut the isolated transactions to which they had testified.

As we have said in the Reed and Cutbirth Cases, we think no error was committed in the above matters, nor in the other matters to which Judge DAVIDSON refers, but does not discuss.
      (®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    JONES v. STATE.
    (No. 3449.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1915.
    On Motion for Rehearing, March 31, 1915.)
    1. Peejury <&wkey;ll — -Materiality op Testimony-Violation of Liquok Law — Possession of Liquok.
    In a prosecution for perjury, where a witness had testified falsely, before the grand jury investigating illegal sales of liquor by a third person, that he had not secured any liquor from such person, the possession of liquors by the accused always being material in prosecutions for violation of a liquor law, such testimony was material and supported the conviction of perjury.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 38-54; Dec. Dig. <&wkey;>ll.]
    2. Perjury <&wkey;36 — Materiality of Testimony-Question for Court.
    In a prosecution for perjury, the question whether the testimony of the defendant was material to an inquiry before the grand jury was for the court.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. § 133; Dec. Dig. <&wkey;>36J
    3. Perjury <&wkey;>33 — Finding—Sufficiency of Evidence.
    In a prosecution for perjury, evidence that the defendant had testified falsely before the grand jury investigating illegal sales of liquor held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dee. Dig. &wkey;>33.]
    4. Criminal Law <&wkey;595, 917 — Trial—Continuance — Illness of Witness.
    In a prosecution for perjury, based on alleged false testimony given before the grand jury investigating illegal sales of liquor by S. to C., where the defendant applied for a continuance, stating in his application that witnesses for the prosecution would swear that they saw C. buy whisky from S., there being no testimony in fact from any source to that effect, and where, in his motion for new trial, he attached an affidavit of C. stating that she would testify that, “I did not buy any whisky from1 S., nor did I ever see him sell any intoxicating liquors to any one,” it being apparent that the testimony was immaterial, the falsity of the defendant’s testimony having to do with whether he himself secured any liquor from S., and could have affected no issue in the case, denial of motion for a continuance and for new trial, made on the ground of C.’s inability to testify through illness, was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327, 2161, 2162; Dec. Dig. &wkey;595, 917.]

      5. CRIMINAL I/aw <&wkey;42 — Witness for State — Immunity Promise — Perjury Before Grand Jury.
    A district attorney has no power or authority to make an agreement not to prosecute a witness before the grand jury for perjury committed before such body; the agreement being contrary to public policy and void.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 45-48; Dec. Dig. <S&wkey;42.]
    6. Witnesses <&wkey;248 — Nonresponsive An-
    S WER— EXCLUSIO N.
    That an answer is not responsive to the question is not ground for exclusion, if it is competent evidence in the case.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 861-863; Dec. Dig. &wkey;248.]
    7. Criminal Law <&wkey;485 — Opinion Evidence-Qualification of Witness.
    A witness who shows that he knows nothing about the situation cannot give his opinion in response to a hypothetical question not founded on the testimony in the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1073, 1074; Dec. Dig. &wkey;> 485.]
    8. Criminal Law <§=^406 — Witnesses &wkey;>380 —Contradiction of Accused — Admissions.
    In a prosecution for perjury, committed before a grand jury investigating illegal sales of liquor, the evidence showing that, while defendant stated that he had received no liquor from one S., two sheriffs looking over a partition had seen S. hand him a pint, evidence that witness had talked with defendant and another negro, and that, although he did not know which one had made the remark or the exact words of it, nevertheless something had been said to the effect that deputy sheriffs, through a hole in a certain partition, could have seen the transfer of liquor, and that there was no use in swearing to a lie, was admissible in evidence to impeach defendant’s testimony and as an implied admission.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dee. Dig. &wkey;>406; Witnesses, Cent. Dig. §§ 1210-1219; Dee. Dig. &wkey;380.]
    9. Criminal Law &wkey;>784 — Trial—Charge on Circumstantial Evidence.
    In a prosecution for perjury alleged to have been committed before the grand jury investigating illegal sales of liquor, where the falsity of defendant’s testimony was shown by the direct testimony of two deputy sheriffs, the failure of the court to charge on circumstantial evidence was not error; since it is only necessary to give such charge where the testimony to establish the accused’s guilt is wholly circumstantial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. &wkey;5784.]
    On Motion for Rehearing.
    10. Perjury &wkey;>29 — Materiality of Testimony-Proof.
    In a prosecution for perjury, not only the indictment must allege that defendant’s testimony was on a material point, but proof must be made to that effect.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 97-106; Dee. Dig. <&wkey;>29.]
    11. Perjury <&wkey;33 — Materiality of Testimony-Sufficiency of Evidence.
    In a prosecution for perjury, evidence held to show that false testimony of accused before grand jury investigating illegal sales of liquor was on a material point.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. &wkey;33.J
    12.Criminal Law <&wkey;llll — Bill of Exceptions — Allegation of Testimony — Approval by Court — Effect.
    In a prosecution for perjury before a grand jury investigating illegal sales of liquor, where a witness gave no such testimony as was claimed in defendant’s motion to strike it out, the court, in approving the bill of exceptions to his overruling of the motion to strike out such testimony, by merely approving the bill, did not thereby certify the contents of the witness’ alleged testimony so that it had to be taken as stated on appeal.
    [Ed. Note. — For other cases,' see Criminal Law,]Cent. Dig. §§ 2894-2896; Dee. Dig. <&wkey;>
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Houston Jones was convicted of crime, and he appeals.
    Affirmed.
    Lattimore & Hutchison and Sturgeon & Ownby, all of Paris, for appellant. R. T. Lipscomb, Dist. Atty., of Bonham, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of perjury, and assessed the lowest punishment.

The alleged false testimony was given before the grand jury on or about October 10, 1913. The indictment followed the statute and the standard forms therefor which have many times been held sufficient. It alleges that appellant appeared before the duly organized grand jury and was sworn by the foreman thereof as required by law. Whereupon it then and there became and was a material' inquiry before said grand jury, and necessary for the due administration of the criminal laws of the state of Texas, in Lamar county, and the ends of public justice, whether Lee Shoulders, about September 20, 1913, in said county, engaged in, and pursued the occupation and business of selling intoxicating liquors in violation of law, and, while engaged in1 and pursuing said occupation and business, made more than at least two sales of such liquor to Dollie • Carter about said date in violation of said law; and properly averred that the liquor prohibition law was then and theretofore in force in said county; that on or about October 10, 1913, appellant did deliberately, willfully, and corruptly testify and say, in substance and effect, that Lee Shoulders did not have in his possession and did not deliver to him (the said Houston Jones) intoxicating liquors on or about September 20, 1913, id said county. The indictment then further properly alleges that appellant then well knew said Shoulders did have in his possession and did deliver to him intoxicating liquors at said time, and said statement so made by him was. deliberately and willfully made, and was deliberately and willfully false, as appellant then and there well knew, and that it was a material inquiry before said grand jury whether said Shoulders, in said county, on or about said date, had in Ms possession intoxicating liquors and delivered the same to appellant.

By motion to quash said indictment, and otherwise, appellant contends that the alleged false testimony by him was wholly immaterial, and could not be the basis of perjury; that in the grand jury’s investigation of whether Shoulders was engaged in or pursued the business of selling intoxicating liquors in said prohibition territory, it could not be a material inquiry of whether he, at that time, had such liquors in his possession or delivered any such to appellant. It is unnecessary to state his other contentions, for they all hinge around the question, as stated above.

Of course, if said testimony was wholly immaterial, it could not be made the basis of perjury, for the statute expressly so enacts. P. 0. art. 809.

There can be no question but that it was the- duty of the grand jury to investigate whether Shoulders, or any other, in said county, was engaged in the unlawful business or occupation of selling intoxicating liquors as denounced by the statute. It may be, too, that as a matter of fact, upon full investigation by the grand jury, it might be determined that said Shoulders was not guilty of such crime; yet that was the very question the grand jury was investigating, and they had the right, and it was their duty, to ascertain any material fact from any witness that would tend to show this. Of course, no one could engage in such business or occupation without getting and having in his possession from time to time more or less intoxicating liquor; and if appellant received from Shoulders at said time such liquor, it would tend to show necessarily that he had such liquor in his possession at the time; otherwise he could not have delivered it to appellant. Since the rendition of the opinions in Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169, Starbeck v. State, 53 Tex. Cr. R. 192, 109 S. W. 162, Myers v. State, 52 Tex. Cr. R. 558, 108 S. W. 392, Southworth v. State, 52 Tex. Cr. R. 532, 109 S. W. 133, Field v. State, 55 Tex. Cr. R. 527, 117 S. W. 806, and Myers v. State, 56 Tex. Cr. R. 224, IIS S. W. 1032, this court has, uniformly and in a large number of decisions—■ unnecessary to collate—held that, in prosecutions for making a single sale of intoxicating liquors in i)rohibition territory, and in prosecutions for pursuing the business or occupation of engaging in such business, the fact that the accused has, about the same time, liquor in his possession, is material evidence, and can always be shown.

Judge White, in his Ann. P. O. § 329, lays down the following correct principles:
“False testimony is material not only when directly pertinent to the issue, but also if it tended to augment or diminish damages or to import greater credit to substantial parts of the evidence. Lawrence v. State, 2 Tex. App. 479. Perjury may consist not only in false and corrupt testimony relative to' the main fact immediately at issue, but also in such testimony, relative to material circumstances, which tend to prove that issue, and irrespective of the truth or falsity of the main fact at issue. Bradberry v. State, 7 Tex. App. 375. It is not. necessary that defendant should have sworn falsely as to every matter of fact material to be proved upon the trial. If his false testimony be material as to any one fact, it is sufficient. State v. Lindenburg, 13 Tex. 27; State v. Webb, 41 Tex. 67. If the false statement is alleged to be material, or so appears from the facts stated, it will be deemed material if it could have influenced the tribunal in which it was made. Rahn v. State, 30 Tex. App. 310 [17 S. W. 416, 28 Am. St. Rep. 911]; Martin v. State, 33 Tex. Cr. R. 317 [26 S. W. 400]; Williams v. State, 28 Tex. App. 301 [12 S. W. 1103]. The degree of materiality is of no importance. Williams v. State, 28 Tex. App. 301 [12 S. W. 1103]. It may be material if it only affects a collateral issue, as that of the credit of a witness. Washington v. State, 22 Tex. App. 26 [3 S. W. 228]; Williams v. State, 28 Tex. App. 301 [12 S. W. 1103].”
“The materiality of the alleged false statement is sufficiently alleged if it is simply averred that it was material to the issue. If such averment is made, the indictment need not show how the testimony became material. Massie v. State, 5 Tex. App. 85; Adams v. State, 29 S. W. 270; Chavarria v. State, 63 S. W. 312; Washington v. State, 22 Tex. App. 31, 3 S. W. 228; Henry v. State, 43 Tex. Cr. R. 177, 63 S. W. 642; Yardley v. State, 55 Tex. Cr. R. 488, 117 S. W. 146; McAvoy v. State, 39 Tex. Cr. R. 685, 47 S. W. 1000; Anderson v. State, 56 Tex. Cr. R. 365, 120 S. W. 462; Scott v. State, 35 Tex. Cr. R. 11, 29 S. W. 274: Johnson v. State, 34 Tex. Cr. R. 555, 31 S. W. 397; Williams v. State, 28 Tex. App. 302, 12 S. W. 1103; Partain v. State, 22 Tex. App. 104, 2 S. W. 854; Jernigan v. State, 43 Tex. Cr. R. 114, 63 S. W. 560.”

Mr. Branch, in his Criminal Law (section 650, p. 417), correctly says:

Judge White, again correctly says (section 328, Ann. P. C.):

“It is the province of the court, and not the jury, to pass upon the materiality of the alleged false statement. Donohoe v. State, 14 Tex. App. 638; Jackson v. State, 15 Tex. App. 579; Davidson v. State, 22 Tex. App. 372 [3 S. W. 662]; Washington v. State, 23 Tex. App. 336 [5 S. W. 119]; Smith v. State, 27 Tex. App. 50 [10 S. W. 751].”

So that the lower court did not err in overruling all of appellant’s contentions on this subject, and did not err in telling the jury as a matter of law, in substance, that such testimony was material to the said inquiry before the grand jury.

It was proven by Mr. Lipscomb, the district attorney, and, in effect, by Mr. Hancock, the foreman of the grand jury, and by Mr. Burnett, another grand juror, that appellant appeared before the grand jury, and, after being duly sworn, gave the alleged false testimony before it. It was also clearly shown that said Shoulders occupied a building cut up into four rooms by two partition walls, one running lengthwise near, but not in, the center, and the other crosswise towards the back of the building; in the two rooms on the east, cut off by said lengthwise partition, he used and operated a restaurant, the kitchen in the rear, and the tables and eating department in the front; that on the

other side of the building he used the other two rooms for a barber shop. The evidence was clearly sufficient to show the lengthwise .partition wall between these two bach rooms was only about 6½ or 7 feet high from the floor, although some of the witnesses thought it was higher. All the other partitions did go to or near the ceiling, which was some 18 feet or more from the floor. On the east of this building adjoining was a blacksmith shop, in the rear part of which was a swinging loft, or second story. In the partition wall between the blacksmith shop and the building so occupied by Shoulders, at or near the top, was a large crack or opening sufficiently large, as one of the witnesses said, for a man to crawl through. Ed Bell and John Collins, deputy sheriffs of said county, climbed up on said swinging loft or second story in said blacksmith shop to watch, and through said crack or opening could see into the rear rooms of said barber shop and restaurant. They both testified positively that on the evening of September 20, 1013, when they were thus secreted and watching, they saw appellant alone come back into said rear barber shop room, and call said Shoulders; that Shoulders went back to him in said room, and Bell said, appellant told Shoulders he wanted a pint of whisky; that Shoulders went to .a box in' said room, got out the pint of whisky, and then gave it to appellant; that the bottle had a red cross label on it; that when it was delivered to appellant, he took a drink out of it, put the bottle in his pocket, and then went back into the other part of the building; that they at once, as soon as they could, got down from their hiding place, went into said building, found appellant with said bottle of whisky in his pocket, showing some had been drank out of it — it was not full — took it, arrested him, and took him to the courthouse.

Appellant denied Shoulders delivered to him said pint bottle of whisky on said occasion. He and some of his other witnesses testified one Barlow brought two quarts of whisky from‘Dallas the day before and left it at appellant’s in the country to be kept for him; that the next day he was going to town, and, in Barlow’s absence, filled him a pint bottle and took it along to town-with him; that before he got to town he gave Ryan a drink, and when they got to Shoulders’ Ryan or Gray told him they wanted another drink; that they .all three then went through Shoulders’ barber shop into said back room, and both Ryan and Gray took a drink out of his bottle; that he himself did not then take a drink out of his bottle; he wanted it, but his doctor was treating him for kidney trouble, and advised him not to use it. Gray swore not only he and Ryan then took a drink out of said bottle, but that appellant also did. Appellant, Ryan and Gray, and two of Shoulders’ barbers all testified Shoulders did not on said occasion go into said back room with, or while appellant was therein, and, in effect, that they did not see Shoulders deliver a pint of whis-ky to appellant. From all the testimony the jury were authorized to believe that if said parties went back into said back room and took a drink with appellant it was a different occasion when appellant, went into said back room, called Shoulders therein, and while they two only were therein Shoulders delivered said pint bottle of whisky to appellant, and he then took a drink out of it, placed it in his pocket, and that that was the bottle the officers found in his pocket and took from him, and it was not the bottle he claimed to have brought from home with him. At any rate, all this was for the jury, and they found against appellant, with ample'evidence to sustain their finding.

Appellant made a motion for a continuance on account of the absence of Dollie Carter, who was sick, and on that account could not attend the trial. 1-Iis application seems to have been based on the assumption, and he so states therein, that said officers, Bell and Collins, would swear on the trial that they saw her on September 20; 1913, buy two bottles of whisky from said Shoulders in his said place of business. As a matter of fact, said officers, and neither of them, gave any such testimony, and there was no testimony from any other source to that effect or tending to that effect. In his motion for new trial on this ground he attaches the affidavit of said Dollie Carter, wherein she simply and solely swears she would testify:

“That I did not on or about the 20th day of September, A. D. 1913, or at any other time, buy any whisky from Lee Shoulders, no-r did I ever see him sell any intoxicating liquors to any one.”

So that her testimony was wholly immaterial, and could have affected no question in this case. It is true the indictment alleged that the grand jury were investigating whether said Shoulders was engaged in the business or occupation of unlawfully selling intoxicating liquors, and whether he made two sales of intoxicating liquors to said Dollie Carter. If there had been any testimony in this case to the effect that said Shoulders did make any such sales to her at such time, then her testimony would have been material, and a different question would be raised. This was his application for a second continuance. Under the circumstances the court committed no error in overruling his motion for a continuance, nor in refusing him a new trial on that ground.

The record shows that on September 20, 1913, or immediately thereafter, when the officers took appellant to the courthouse, the county attorney examined him as a witness, presumably investigating to see if said Shoulders had violated the liquor laws, and from testimony which he thus gave before the county attorney complaint was filed against him charging him with perjury; that he gave bond for his appearance before the district court to await the action of the grand jury on tills complaint against Mm; that when the grand-jury convened on the first Monday in October he was summoned before it as a witness. He then went to his attorneys, laid the matter before them, and they undertook to see the district attorney as to whether or not he could be compelled or should testify before the grand jury. He and his attorneys claim, and so testified in effect, that the district attorney promised him immunity from said perjury charge if he would testify before the grand jury and tell the facts. The district attorney denied that he had promised Mm immunity or agreed not to prosecute him for perjury if then committed before the grand jury. Before this case was tried he filed a sworn plea setting up this promise of immunity. The state, through its district attorney, denied and resisted the plea, and the whole matter was fought out by the testimony of the parties before the district judge, who, after-hearing all the testimony, held, in effect, that the district attorney did not make such agreement, and that, if he did, no court would approve it. We think it unnecessary to go into any lengthy detail of this matter. It is sufficient to say that the appellant in this case was not indicted for any supposed perjury committed by him before said county attorney. He was indicted, as shown and alleged in the indictment, for what he falsely testified before the grand jury on October 10, 1913. The district attorney, and no other, had the power or authority to make any binding agreement with appellant that he would not be prosecuted for perjury committed in his-testimony before the grand jury before it was given, and, if he had made such agreement, it would be contrary to public policy and void. It does not come under that class of authorities which authorizes the prosecuting officers to make an agreement with a party to turn state’s evidence and testify to facts that might incriminate him in his prosecution against some other person. Such contracts by the state, through its prosecuting officers, are permissible, and are always enforced, but surely, even in a case of that kind, the state’s officers could make no valid nor binding agreement whereby, in advance, they would agree not to prosecute him for perjury if he committed it in his testimony. The court, therefore, did not err in overruling his said plea and sustaining the state’s motion to strike it out, nor did he err in refusing to permit his said sworn plea to be introduced in evidence before the jury.

The court did not err in permitting Mr. Hancock, the foreman of the grand jury, to testify that appellant testified before the grand jury that he did not get any intoxicating liquors down at Lee Shoulders’, and that he said he didn’t have any, over the objection by appellant that it was immaterial whether Shoulders had any intoxicating liquors in his possession, because it was not a violation of law to have such liquor in his possession, and it was an immaterial issue as laid in the indictment. Nor did the court err in overruling his objections to the testimony of Mr. Lipscomb, the district attorney, as to the said testimony of appellant before the grand jury on the same grounds. Appellant’s objections seem to have been based on the mistaken idea, as we have shown, that in the said investigation pending before the grand jury the fact, if so, that said Shoulders had such liquor in his possession at the time, was immaterial; such a fact, if so, was very material to the inquiry and investigation then being made by the grand jury.

No reversible error is shown when said Deputy Sheriff Bell, while being cross-examined by appellant to this question, “I am talking about the first time you saw it [the whisky],” to which the witness answered, “He taken a drink right when he bought it and put it in his pocket,” which was objected to by appellant because the answer was not in response to his question, and there was no allegation in the indictment that defendant bought any whisky from Shoulders, and it was calculated to poison the minds of the jury against Mm. This testimony by this witness was pertinent testimony in the case. It may not have been in direct answer to the question, but that would be no ground to exclude it. It would be a matter of comment before the jury of the manner and voluntary testimony of the witness.

Neither was any reversible error committed in the court’s refusal to permit appellant’s witness Lindsey to answer a hypothetical question over the state’s objection that the hypothetical question was not based on the testimony in the case. The witness by his own testimony shows that he knew nothing about the situation so as to qualify himself to testify to the hypothetical question, and the answer sought was merely his conclusion.

Appellant himself testified on the trial. For the purpose of impeaching him and showing an implied admission, the state asked him if he did not go with another negro to said blacksmith shop, borrow a ladder, go up and look through the hole where the officers claimed they looked, and at the time tell Mr. Stowe that he was charged with perjury, and, after coming down from looking through the hole, if he didn’t state to him that the officers claimed that they saw him (appellant) up there, and that there was no use to swear a lie about it; that they could see him. He denied all this. The state then asked him if the man that was with Mm on said occasion didn’t state to Mr. Stowe in appellant’s presence and hearing that there was no use to swear a lie about it; that they could see him, and that he didn’t deny it. He denied this. The state then introduced the witness Stowe, who testified that upon said occasion he saw appellant in said blacksmith shop, and that he got a ladder and climbed up to the swinging loft where the opening between said blacksmith shop and said Shoulders’ place had been, and that when he came down he told the witness that he was the man charged with perjury. The state then asked Stowe if at that time the appellant or the man that was with him, in appellant’s presence and hearing, made the statement that there was not any use to swear a lie about it; that the officers could have seen him. The witness answered that he didn’t know whether these were the exact words or not, but that either the appellant himself or the other man said the officers could have seen what was going on. We think this evidence wa's admissible both to impeach appellant and as an implied, if not direct, admission by him. Nor did the court err in overruling appellant’s motion to strike out certain testimony purported to have been given by said Hancock, foreman of the grand jury.

Appellant had several objections to the court’s charge, and also requested several special charges. We have examined all these. The court’s charge is full, clear, and apt, and submits everything that was necessary or proper to be submitted to the jury over appellant’s complaints thereto. None of his special charges should have been given.

He lays particular stress on the point that he claims the court should have given a charge on circumstantial evidence. The law is too well settled in this state to need citation to the cases that it is only when the testimony to establish an accused’s guilt is wholly and solely circumstantial that it is necessary to give such charge. We think the testimony of the two officers, Bell and Collins, substantially stated above, was positive and direct, and that no charge on circumstantial evidence should have been given. See section S13, White’s Ann. C. C. P.; Ballard v. State, 71 Tex. Cr. R. 168, 160 S. W. 92; Law v. State, 71 Tex. Cr. R. 179, 160 S. W. 98; Branch, Crim. Law, § 203.

We have carefully studied this record and all the questions raised by appellant. We have not thought it necessary to take up each question separately, though we have considered and passed on all of them. In our opinion, there is no reversible error in this case, and the judgment will be affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant urges but two grounds:

(1) “Because the proof in this case absolutely fails to show the materiality of the matter assigned as perjury.”
(2) “Because the. court erred in holding there was no error in the trial court refusing to sustain his motion to strike out a certain part of S. H. Hancock’s testimony.”

1. In the submission of this case appellant’s attorneys in their oral argument, and also in their brief herein, strenuously insisted that the purported false testimony of appellant before the grand jury was not material. We undertook to show in the original opinion, and we think we did, that the appellant’s alleged false testimony was material, specifically so alleged in the indictment, and the allegations, in addition, showed that'it was. Appellant again vigorously contends that the proof does not show it was material, although it was alleged to be ; in other words, as he expresses it, that the proof “absolutely fails to show the materiality.” We think he is clearly mistaken in his contention, for the proof does show affirmatively the materiality of his false testimony. Appellant is right in his contention that it must not only be alleged to be material, but must also be proven to be material.

In every case where a party is charged by indictment with unlawfully engaging in the business or occupation of selling intoxicating liquors in prohibition territory, one of the most material items of proof always is to show that about the time he is charged with this offense he then either received, or had in his possession, intoxicating liquors. Of course, the more frequent the receipt and the greater quantity shown to be in his possession the more strongly it might tend to prove that feature of the offense; yet, unquestionably, it would be material to show that he had any in his possession, however small the quantity might be. As said by Judge Davidson for this court in Oliver v. State, 68 Tex. Cr. R. 417, 152 S. W. 1066:

“He may keep only a small amount .or may order it without keeping it on hand, and sell to parties, and yet engage in the • business.”-

shown in the original opinion, the indictment alleged that the grand jury -were investigating whether or not Lee Shoulders was engaged in or pursued the occupation or business of selling intoxicating liquors in vio-vioof the prohibition law, and appellant was before it as a witness, and deliberately, willfully, and corruptly did testify that Lee Shoulders did not have in his possession and did not deliver to him intoxicating liquors on or about September 20, 1913, and that his testimony in this respect was knowingly and willfully false. Mr. Lipscomb, the dis-disattorney, after showing that he was present as such before the grand jury when appellant was before it, testified:

“At that time the grand jury had under investigation the question of whether or not Lee Shoulders was unlawfully engaged in and pursuing the business and occupation of selling intoxicating' liquors in violation of law in Lamar county, Tex., after a local option election had theretofore been held in Lamar county prohibiting the sale of intoxicating liquors in Lamar county, and after the result of that election had been declared and published, and after the local option law was in effect in this county, and as to whether or not he had made more at least than two sales of intoxicating liquors, and had made two sales of intoxicating liquors to Dollie Carter about the 20th of September, 1913. Mr. S. H. Hancock was fore-
man of the grand jury, and administered the oath to the witness Houston Jones when he appeared before the grand jury to testify, and Houston Jones testified, in substance, before the grand jury, in answer to the questions, * * * that about the 20th of September, 1913, in Lamar county, Tex., Lee Shoulders did not have in his possession any intoxicating liquors in Lamar county, and also further testified that Lee Shoulders didn’t about the 20th day of September, 1913, deliver any intoxicating liquors to this defendant, Houston Jones.”

Mr. Lipscomb was not only not disputed in any particular, but Mr. Hancock,, foreman of the grand jury, and Mr. Burnett, another of the grand jurors, fully corroborated him.

Mr. Ed Bell, after showing that he and John Collins were in a position to see into the back room of 'Lee Shoulders’ barber shop, and did see therein on September 20, 1913, as shown in the original opinion, testified: ,

“On that day I saw the defendant Hous. Jones and Lee Shoulders. I saw Hous. Jones come through the barber shop; came back in the back end; came through the partition wall that run east and west, and came back in the back end and called Lee Shoulders, and Lee Shoulders came back there, and he told him he wanted a pint of whisky, and Lee went to a box and got out the pint of whisky, right by this partition door, and came back there and gave it to Hous. Jones, and he put it in his pocket.”

It is unnecessary to further detail his evidence wherein he showed that he and Collins at once got down from their hiding place, went to appellant and took from his pocket the said bottle of liquor, and identified it. Collins testified substantially the same thing. We cannot see how else it could be shown to be material, or what was lacking to show its materiality. Ernest Cox v. State, 174 S. W. 1067, not yet officially reported. So that we think there can be no sort of doubt that the state in this case proved that the said alleged false testimony by appellant was material ; in other words, not only the indictment alleged the testimony of appellant was material, but the state without doubt proved it was material.

2. Mr. Hancock, the foreman of the grand jury, testified:

“At the time Houston. Jones was before the grand jury they was investigating the case of Lee Shoulders, down on Bonham street, selling' intoxicating liquors in Lamar county. I don’t know who all the sales were made to; there was so many of them. There was an investigation made with reference to sales made to Dollie Carter by Lee Shoulders.”

This testimony was given without any objection at the time by appellant as to the question he now urges in the court’s refusal to sustain his motion to strike out certain testimony. After the evidence was all in appellant made a motion to strike out the following testimony by said Hancock, to wit:

“That, while acting as foreman of the grand jury, he had heard a witness say that Lee Shoulders had sold intoxicating liquors, and that he could not remember the number of sales testified to by said witness before said grand jury.”

As a matter of fact, Mr. Hancock gave no such testimony as is claimed in said motion. The court, in approving the bill to the overruling of the motion to strike out, as stated, merely in effect approved the bill certifying that he overruled the motion. He did not certify thereby that Hancock had testified any such thing. Even if Hancock had so testified, it would not present reversible error, because appellant was not on trial for making a sale or buying liquor. If Shoulders had been on trial, and the court had permitted such testimony against Shoulders, a different question would be presented. So that in no event does the bill present reversible error.

The motion is therefore overruled.
      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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