Appellant was convicted of perjury, and his punishment assessed at two years confinement in the penitentiary; hence this appeal.
The indictment contains a number of assignments, but inasmuch as the prosecution proceeded upon one assignment of perjury, it is not necessary to notice the others. This assignment is in these words: "It became and was a material inquiry whether the said John Higgins had seen a game played with cards in a certain outhouse situated in the town of Quinlan, in Hunt County, Texas, on or about the 3d day of October, 1896, where people did then and there resort." It was proved by one witness that appellant was asked the question before the grand jury if he had seen any card playing about the 3d of October, 1896, at any outhouse where people resorted, in the town of Quinlan, Hunt County, and he answered that he had not. By two or three witnesses it was proved that *Page 542 they saw defendant playing a game with cards in an outhouse in Quinlan, Hunt County; that the outhouse was in the outskirts of the town, and was an old, unoccupied dwelling house, belonging to J.H. Cook. The record does not disclose any other game of cards played at said house, except the one in question. It was shown that during the fall said house was vacant during most of the time. The only testimony tending to show that it was a house where people resorted was the game in question, and by one witness, who lived near there, it was proved that he saw lights and heard people talking inside said house several times during that fall, while it was vacant, but he did not know what they were doing there. By another witness it was proved that when he would be passing there during that fall he had heard people talking there in the night.
On this state of facts appellant requested the court to give the following instruction: "In order to convict this defendant, the evidence must show that the matter about which he testified was a violation of the law. Therefore, before you could convict this defendant for perjury, you must be satisfied, from the evidence in this case, that the place mentioned in the indictment was an outhouse, where people commonly resorted for the purpose of gaming or for some other specific purpose."
If it be conceded that the evidence was sufficient to show that said house was a place where people resorted for the purpose of gaining, or for other purposes, so as to make a public place, certainly the charge in question should have been given. To say the most of it, the testimony indicating that it was a house where people resorted was exceedingly meager, and it was a material issue in this case for the jury to find; and, as stated before, the requested charge on this subject, or one covering this phase of the case, should have been given by the court.
Furthermore, we would observe, with regard to this assignment for perjury, that it does not seem to us to come within the rule heretofore laid down by this court. See McMurtry v. State, ante, p. 521. The question as presented in the indictment, which was propounded by the grand jury to the defendant, does not contain the essential elements which, under a similar state of case, would constitute a predicate for the impeachment of a witness. The particular outhouse is not stated in the indictment. True, it was proved that it was Cook's outhouse about which the witness was questioned. This matter seems to have been known to the grand jury, and should have been embraced in the assignment. Moreover, the assignment should have stated at least some of the persons involved in the supposed game of cards inquired about — enough to identify the transaction, and to apprise the witness of the particular occasion inquired about. When the attention of the witness was thus challenged, he might very readily remember and recall the transaction; whereas, if he was inquired of generally with reference to a game of cards on the 3d of October, at an outhouse in Quinlan, Hunt County, his attention might not be challenged. There may have been a number of outhouses in said town, and, the witness's attention not having been called to any particular one, he might not remember the game. *Page 543
In our opinion, the assignment on which the conviction was had in this case did not charge an offense, and the judgment is reversed and the cause dismissed.
Reversed and dismissed.