Conviction of perjury. The indictment contains two assignments of perjury: the first assignment was not submitted to the jury. The second reads as follows: "It was a material inquiry before the justice, whether the said Foreman (appellant) had at or near *Page 182 Guinn's Camp as aforesaid, then and there at any time recent or theretofore during the year 1902, seen Mel Thompson, Will Stafford, Leander Cleaver and Andrew Kennedy, or any one or more of said persons or any other person bet any money or valuable thing at a game played with dice called craps at a place that was not then and there a private residence, in said county and State and in said justice precinct." In presenting this assignment to the jury, the court charged, that if the defendant swore he did not see said named parties bet at a game played with dice, called craps, near the Guinn's Camp, in Cherokee County, Texas, in the month of July or August, 1902, to find the defendant guilty. These months were clearly covered by the time alleged in the indictment; and the fact that the court limited the jury to these months could not possibly injure the rights of appellant, but would necessarily redound to his benefit. We do not think the court erred in refusing to force the State to elect on which "count," as appellant terms it, he should be prosecuted. In the first place, there is no bill of exceptions presenting this matter; and secondly, we find but one allegation of perjury in different assignments, and hence but one count. Appellant's motion to quash the indictment is not well taken since the same does state time, place and parties with such certainty as puts appellant upon notice of what is being inquired about, and is not in conflict with McMurtry v. State, 38 Tex.Crim. Rep.; and Higgins v. State, 38 Tex.Crim. Rep..
Appellant further insists that if one of the assignments of perjury that appellant saw craps played on three or four different occasions by parties named in the indictment, occurring about the same time and place. Appellant insists these are different transactions, but the indictment charges that he saw all the parties named in the indictment play craps when he swore that he did not. Certainly it was proper for the State to prove the allegations of the indictment. Sisk v. State, 28 Texas Crim. App., 432; Chavarria v. State, 63 S.W. Rep., 312.
Appellant furthen insists that if one of the assignments of perjury was defective, the motion to quash was good — at least that the court erred in admitting testimony upon the bad assignment This contention is not supported by the authorities. McMurtry v. State, supra; Vincent v. State, 55 S.W. Rep. 821; Manning v. State, Austin Term. 1904.
Appellant insists that before the inquiry made by the justice of the peace of appellant could form the basis of perjury, it was necessary for the inquiry to have been about the playing of dicenot at a private residence. It is true that the playing must have been not at a private residence, but it is not necessary that the form of the question propounded to appellant by the justice of the peace should so state, in order that the inquiry should be a material inquiry and a proper predicate for perjury. In other words, the justice of the peace was authorized to make inquiry of the witness touching any violation of the law, and in order to be a violation of the law, the playing had necessarily *Page 183 to be not at a private residence. But, it does not follow that because the justice in asking the question did not except private residence, this would absolve appellant when he falsely testified about an act that was in violation of law.
The last insistence of appellant is that the evidence is insufficient to support the conviction. The testimony is amply corroborated by two witnesses, with strong circumstantial evidence, as to the falsity of appellant's testimony, in swearing that he did not play with Mel Thompson. It is insisted, however, on the part of appellant that there is no corroboration as to the playing with the other parties named in the indictment.
The record shows that appellant admitted having sworn falsely before the justice of the peace in reference to all the parties. This, we take it, would be ample corroboration as to the playing; at least one witness having testified to the playing, coupled with the confession of appellant and other circumstances in the record not necessary to collate, we think amply supports the verdict. The judgment is affirmed.
Affirmed.
Davidson, Presiding Judge, absent.
[Motion for rehearing overruled without written opinion. — Reporter.]