In my opinion, the indictment herein is fatally defective in these particulars only:
1. Wherein it alleges it was a material inquiry, etc., whether appellant within two years before September 22, 1912, "in Hamilton Co. or within 400 yards of the line between Hamilton and Erath Co. played," etc., this should have been "in Hamilton Co.and within 400 yards," etc. And wherever in this connection the disjunctive or is used, the conjunctive and should have been used. The rule in Byrd v. State, 72 Tex.Crim. Rep. and 265, 162 S.W. Rep., 360, does not apply. However, proof of either in Hamilton Co., or within 400 yards of the line between said counties, would have been sufficient — it would not be necessary to prove both.
2. No allegation avers that appellant bet in any of the games he played, nor does any allegation aver who bet in any of the games he saw played. This should have been averred. Or if the games he played in himself alone were relied upon it should have averred he bet thereon. If not those, but the games he saw played alone were relied on, then it should aver who bet therein.
I think the indictment is not defective in any other particular.
No direct averment was made that the alleged false testimony upon which the perjury was based, "was material to the issue," but taking all the allegations together I think they show what is alleged he testified was material to the issue. See the opinion in Charley Bell v. State, this day delivered. However, I think it would always be better to make the specific allegation, that what he testified was material to the issue.
On these grounds alone I concur in Judge Davidson's opinion reversing and dismissing this cause.