It is urged that we were in error in the disposition made of bills of exception Nos. 4, 4a, 4b, 4c and 4d. Before discussing the point it is well to get the setting of the case. Appellant, his brother, Grady Faulkner, and Riley James were living in the Camp Creek community in Robertson county. James was making his arrangements to leave the community and was expecting to take a train out of Bremond on Tuesday night, December 16. He had arranged with Grady Faulkner to take him to Franklin where he had some business matters to adjust on Tuesday, and then to take him from Franklin to Bremond that night. On the way to Bremond they were held up and robbed. It was the state's contention that the robbery was a "fake" as to Grady Faulkner; that appellant and an unidentified party knew of the proposed trip and with the connivance of Grady perpetrated the robbery of James. The evidence is undisputed that the three parties, appellant, Grady and James were in Franklin on the Tuesday in question. J. A. Cox testified that appellant related to him on December 23 his movements in Franklin on Tuesday, December 16, and claimed to have left Franklin on the public road leading to Camp Creek about 10 o'clock a. m. This is the matter complained of in bill 4. In the other bills complaint is made because witnesses were permitted to testify that they saw appellant in Franklin after 11 o'clock and saw him get on a train which went toward Hearne. This was some eight or ten hours before the robbery. Appellant contends that the evidence related to remote acts which were immaterial and of no probative force and at most could only serve to prejudice the jury by showing he had made an untrue statement to Cox. In our original opinion we referred to this evidence as having been offered by the state for the purpose of impeaching the statement made by appellant to Cox, being led thereto by the contentions in appellant's brief. Appellant did not testify upon the trial of the case and nowhere in the record do we find the evidence either of Cox or of the other witnesses referred to as having been admitted for the purpose of impeachment. The court did instruct the jury that the state having introduced through Cox the statement made by appellant would be bound thereby unless it had shown the falsity thereof. As we understand the record, the question of impeachment does not enter into the matter at all. It is always admissible to prove as a circumstance of guilt that an accused has fabricated *Page 384 or attempted to fabricate testimony. At the time appellant appeared before Cox (justice of the peace) and made the voluntary statement testified to by the latter, appellant had with him one Robert Parker, who also made a statement. It further developed that appellant knew at this time that he was suspicioned of the robbery. He had told Parker that he (appellant) had to show where he was and wanted Parker to testify for him. Appellant wanted Parker to testify that the latter came to appellant's house on Tuesday night of the robbery and found appellant eating supper; that Parker remained there and played pitch with him and other members of the family until about 10 o'clock. He did induce Parker to make a statement to this effect before the justice of the peace at the same time appellant made his statement claiming to have left Franklin on his way towards home about 10 o'clock on the Tuesday in question. Parker was used as a witness by the state. He admitted that he had at one time made a statement before a grand jury which was in line with the story appellant had induced him to tell to the justice of the peace, but said it was false, that he was not at appellant's house on the Tuesday night in question at all. It is apparent appellant was seeking to fabricate the defense of an alibi which was to culminate in the testimony of Parker placing him at home at the time of the robbery, preceding it with the statement that he left Franklin going towards home on the Tuesday in question. Under the circumstances it does not appear to be debatable that the state had the right to make the proof offered through the witness Cox and to follow it by showing that the statement then made was untrue. The state had a right to show by Parker that appellant had made an effort to induce him to testify upon the trial to facts which were not true, and also to prove that appellant in fact did not leave Franklin at the time and in the manner claimed by him.
The motion for rehearing is overruled.
Overruled.