Appellant was convicted of perjury, and his punishment assessed at confinement in the penitentiary for a term of two years, and he appeals.
Appellant made a motion to quash the indictment on the ground "that the same charged no offense against the laws of the State, in that said indictment shows upon its face that the statement assigned as perjury was an immaterial statement, or a statement concerning an immaterial matter, not affecting any issue involved in the trial of the case on the trial of which said perjury is alleged to have been committed; (2) that the statement in said indictment alleged as perjury is, as shown by the indictment, the denial of a statement made when the defendant is not alleged to have been under oath, and no denial thereof under oath will, under the law, support an assignment of perjury." We have examined the indictment critically, and, in our opinion, it is sufficient. The gist of the charge, as we understand from the indictment, is that the appellant in this case was a witness in a certain case in which the State of Texas was plaintiff and Dan Jones was defendant, on a charge of an assault with intent to commit robbery. On the trial of said case, appellant *Page 648 appears to have been a witness for said Jones, and, among other things, testified that the man who assaulted one Walker was a small man; the evidence being that the said Jones was a large man, and the effect of his testimony being to show that it could not have been Dan Jones. On the cross-examination, as a predicate for his impeachment, he was asked if he did not state, in the presence of certain parties named in the indictment, and at a certain time and place, to wit, on the morning after the alleged commission of said assault, that the party who made said assault upon said H.C. Walker was a large man. This he denied, stating that he did not so state. On this predicate the perjury was assigned. The testimony of appellant on the trial of the Jones case was upon a material matter; that is, he testified to a fact tending to show that it could not have been Jones who committed the assault with intent to rob, because Jones was a large man, and the party, according to his evidence, who made the assault, was a small man. Now, it was competent for the State to show that he had made a statement contradictory to this, and such contradictory statement was material, and he could be impeached on the same; and we understand the indictment to lay the predicate upon said false statement in a logical method. It was not basing the perjury upon the unsworn statement, but upon the sworn testimony of appellant; that is, he swore on the trial of the Jones case that he had never stated to the parties named, and on the occasion referred to, that the party making the assault was a large man. It was competent to contradict him upon this issue, which was done in the trial of the Jones case, and, it being upon a material issue, it was competent to base a prosecution for perjury upon said false statement.
We have carefully examined the record, and, in our opinion, the evidence amply supports the finding of the jury. The judgment is affirmed.
Affirmed.
DAVIDSON, Presiding Judge, absent.
ON MOTION FOR REHEARING.