Appellant was convicted of perjury, and his punishment fixed at two years confinement in the penitentiary. Motion was made by appellant to quash the indictment, because it does not show from its tenor and effect that the testimony given by defendant on the trial in which he is charged with having committed perjury was material to the issue of said trial. The indictment shows appellant, while being tried for theft in the County Court of Delta County, took the stand as a witness in his own behalf, and on cross-examination he was asked, among other questions: If he had not been indicted and convicted and sentenced to the penitentiary in Fannin County for forgery. He stated positively that he had not. Upon this false testimony, in the county court, the indictment herein was predicated. We hold that the testimony was a material inquiry in said theft case in the county court, and that appellant swore to a statement that was material *Page 84 in the progress of said trial, and therefore the same furnishes a proper basis for perjury. The court did not err in refusing to quash the indictment.
By special instruction appellant asked the court to submit to the jury the materialty of the testimony to the jury. This is not a question for the jury, but for the court.
Bill of exceptions number 2 complains of the argument of the district attorney in his closing speech to the jury, wherein he used the following language: "Gentlemen of the jury. There is hardly a trial in the courts now but that some one commits perjury. You ought to make an example of this defendant by sending him to the penitentiary and learn others that the crime of perjury must be stopped." To which remarks appellant objected, because the jury had no right to base defendant's guilt on the conduct of others; and they should not convict defendant merely as an example. We do not think it was proper for the district attorney to use the language complained of. But there is no special charge requesting the court to instruct the jury to disregard said argument. Hence we do not think it was such error as authorizes a reversal.
Bill number 3 complains of the following argument of the district attorney: "Defendant admits that he testified falsely on his former trial in the county court. Didn't he tell you that he was sent to the penitentiary from Bowie County, for robbery; and did he not further tell you that he did not tell the county attorney about that when he was being tried for theft. He says now that he was not asked that question. But gentlemen, he had sworn to tell the whole truth. I'll tell you why he did not tell him. It was because he thought the odium of robbery was greater than that of murder, and would injure him on the trial before the jury more than murder would." Whether the district attorney's argument as to the failure of appellant to so testify was legitimate inference is a matter of conjecture. There was no special charge requested asking the court to instruct the jury to disregard this argument. Being a bare inference drawn by the district attorney from the testimony, we cannot say it is reversible error.
We think the evidence is sufficient to support the verdict; and the judgment is affirmed.
Affirmed.
Henderson, Judge, absent.
ON REHEARING. April 19, 1905.