In his motion for rehearing appellant complains on two grounds only. First, that the court erred in holding that the indictment was sufficient in that it did not expressly allege that the appellant was warned, etc., before he testified before the grand jury and that because the indictment did not so allege the court erred in permitting the testimony of the witnesses Lewis, Martin and Sweeton that such warning was given. These questions were correctly decided in the original opinion and no further discussion of them is necessary.
The other ground of his motion for rehearing, as we understand it, is that the court erred in not giving his special charge shown by his bill of exceptions No. 6 to this effect:
"Now comes the defendant in the above entitled and numbered cause, after the State has rested its case, and moves the court to instruct the jury to return a verdict of not guilty, for want of legal and necessary proof of guilt, and for want of sufficiency of proof of the falsity of the alleged statement of perjury in the indictment by two credible witnesses or one credible witness strongly corroborated," claiming that this should have been given in accordance with Art. 805 (785) Code Criminal Procedure to that effect. Instead of this, the court charged the jury in a separate and distinct paragraph in the precise language as requested by appellant in his special charge No. 6: "You are instructed that a credible witness is one, who being competent to give evidence, is worthy of belief." And in addition, this: "The jury are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given to the testimony, but in this case the State must make out its case by the testimony of two credible witnesses or of one credible witness corroborated strongly by other evidence of the falsity of the defendant's statement under oath." And still in addition, gave appellant's 8th special charge as follows:
"A conviction for perjury can be had in this State only upon the testimony of two credible witnesses, or of one credible witness strongly corroborated by other evidence as to the falsity of the defendant's *Page 250 statements under oath, and if you have a reasonable doubt of the sufficiency of the evidence to prove such falsity of such statement, if you find there is such evidence of falsity of the alleged statement, or if you have a reasonable doubt as to the sufficiency of evidence of the corroboration, if you find there was any corroboration, you will find the defendant not guilty."
The effect of appellant's contention on this point is, as we understand it, that because the State's main witness, Paul Garvin, was contradicted and did not come into the court with clean hands, and his testimony showed there was a boy with him when appellant delivered the beer to him, whom the State did not have to testify, that the court, as a matter of law, must determine and charge that he was not a credible witness and, in addition, from all the testimony, must decide, as a matter of law, that there was no sufficient corroboration of said witness, which would require the court to submit the question to the jury, or justify a finding of guilty.
In our opinion the court did not err in not giving appellant's said special charge above quoted in his bill No. 6, which he complains should have been given, but that the court properly and fully submitted the question to the jury for its finding, and the charges the court did give on the subject, and those he gave as requested by appellant were as favorable to him as the law would justify. Even though the main witness for the State may have been contradicted, the court could not, as a matter of law, charge that he was an incredible witness, but must leave that matter for the jury. After a careful review of the testimony, we are of the opinion that there was ample evidence justifying the jury to believe that the State's main witness was strongly corroborated and the evidence was amply sufficient to sustain the verdict, and the court could not, as a matter of law, take that question from the jury and decide it. The record shows that said boy, who was with Paul Garvin when he testified appellant delivered the liquor to him, left the county about the time the grand jury met, and his whereabouts was unknown.
There is nothing further raised by appellant in his motion for rehearing which requires any discussion. The motion for rehearing is overruled.
Overruled.