This case was affirmed at a former day of this term, and is now before us on motion for rehearing. The issues raised in the motion were treated in the original opinion. But counsel for appellant urgently insists that we were wrong in deciding those *Page 136 issues against him. He insists that the indictment should be quashed because the date stated in the alleged false testimony is not material. And he particularly claims that the indictment is defective in that it only negatives the fact that the conversation occurred at Sol Mallard's at a party, in January, 1902, and does not negative the fact that the conversation did not occur; and to support his contention he refers us to Martinez v. State, 7 Texas Crim. App., 394. We have examined that case, and in our opinion it is in point. However, we believe that the proposition was incorrectly decided in that case. We understand the rule to be, where the alleged perjury was committed in the trial of a case, that the indictment should aver the case being tried, and that issued was joined in said case. But it is not necessary to allege that the issue or factum probandum to be proven was material. Then, the indictment must set out the alleged false testimony which constitutes the assignment of perjury, and this must be averred to be material, or sufficiently pleaded to show its materiality. This must be traversed or stated to be false. We understand this indictment to contain the allegations as above stated. That is, it is alleged that one John Tyler was being tried in the district court of Cherokee County for an alleged rape, committed on one Cora Mallard, giving time, place, etc., and that said court had jurisdiction, etc. It is then charged that appellant was introduced and sworn as a witness, etc., and that he testified, as follows: That he heard a conversation between John Tyler and Cora Mallard at a party at Sol Mallard's, in January, 1902, in which John Tyler said, in substance and effect, "`if you (meaning Cora) are going to be my woman (meaning his John Tyler's woman) you (meaning Cora) must let other men alone,' to which she replied, `I am not having anything to do with other men.'" This statement was alleged to be material, and is properly traversed as false. We understand that all the authorities require that the alleged statement or testimony of the witness on which the assignment of perjury is based is required to be set out and charged to be material as was done here. We also understand that the alleged statement on which the perjury is assigned, must be substantially proven as alleged. That was done here. If the State had proved something else than as assigned, there would have been a variance and the prosecution could not have been maintained. We are at a loss to see or appreciate the ground of appellant's objection to this indictment. Under all of the authorities, except the one referred to by counsel, the indictment is in proper form. That said assignment was material to the main issue cannot, in our opinion, be questioned. It was material as original testimony in the rape case to show that Cora Mallard likely consented to the carnal intercourse; and it was material to impeach and contradict Cora Mallard, who testified on the trial. If appellant or his witness had contended that he did not make the statement as alleged by the State, and had offered proof to that effect, and such proof had shown that he made the statement as to the conversation, locating it as some other place and at some other time, then it would *Page 137 have become incumbent on the court to have submitted an issue to the jury to the effect that, if they did not believe beyond a reasonable doubt that the State had proven the assignment as laid in the indictment, but that the testimony given by appellant was at another time and place, they should acquit defendant of the charge as alleged in the indictment. But we do not understand such to have been the case here. On the contrary the State proved (as stated in the original opinion) the assignment set out in the indictment, and we do not understand appellant offered any countervailing proof. We trust that we have made ourselves understood as to the propositions embraced in the motion for rehearing; and would not have discussed the same matter embraced in the original opinion, but for the urgency of appellant's counsel. The motion for rehearing is accordingly overruled.
Overruled.
Brooks, Judge, absent.