In his motion appellant sets up that the indictment is fatally defective in that it alleges that appellant testified before the grand jury that he "did buy a quart of whisky from Robert *Page 604 Ash . . . in the presence of Johnny Smithers," the proposition being that the latter allegation was immaterial and invalidated the indictment. We do not think so. Reference to the indictment discloses that it is alleged that it became and was "a material inquiry before said grand jury . . . whether . . . Robert Ash had . . . unlawfully sold to Lee Logan . . . intoxicating liquor," and that Logan did state and testify before the grand jury that he did buy a quart of whisky from Robert Ash, in the presence of Johnny Smithers, which testimony was material to the inquiry, and which was false, etc.
It is the rule that when more than one assignment is laid in a perjury charge, those not material or not proven will be rejected and still a conviction be upheld if material assignments appear and are supported by proof. It is also the rule that perjury may be assigned on false testimony as to facts which are collaterally, remotely or circumstantially material, the extent of the materiality not affecting the question. Our statute, Art. 309 P.C., denies the commission of perjury only when the statement is "wholly immaterial." A statement as to persons who are present when a given event takes place may be of the greatest materiality. We have examined the cases of Butler v. State, 38 S.W. Rep., 47, and Biard v. State, 54 Tex.Crim. Rep., 113 S.W. Rep., 275, cited in appellant's motion, but do not find them to hold contrary to our views in regard to the admission of evidence of the making of the affidavit before the county attorney. We do not think the issue of a confession vel non raised by said affidavit. Making same by the appellant was but a circumstance and testimony thereof tended to support the State's claim that appellant swore falsely on the issue before the grand jury, i.e. whether Ash sold liquor to the appellant.
The jury gave appellant the lowest penalty, and there was no plea of insanity nor claim that he was induced by anyone to make the alleged false statement. We are not inclined to believe ourselves in error in holding it proper for the trial court to have rejected the testimony of the witness Keen.
No error appearing in the record, the motion will be overruled.
Overruled. *Page 605