Appellant was convicted of perjury, and his punishment assessed at five years, from which he appeals.
In this case it is only necessary to consider one question, to-wit, the variance between proof and indictment. In an altercation between appellant and one Sexton, in Mills County, on the 24th of December, A.D. 1892, both being under the influence of whisky, the said Sexton several times addressed the appellant with the words, "You God damned son-of-a-bitch." The said Sexton was arrested, and tried on the 14th of January, 1893, before the Justice Court for the offense of using violently abusive language of and concerning said appellant, in the presence and hearing of appellant, under circumstances reasonably calculated to provoke a breach of the peace. Penal Code, art. 314. At the trial aforesaid appellant was present as a witness, and after being duly sworn, stated he knew nothing about the matter; and if the language aforesaid was uttered, he did not hear it nor remember it. On the 23rd of March following, appellant was indicted for perjury. The perjury assigned was, that the said James Leverette did willfully, knowingly, and deliberately testify that Colbert Sexton did not use violently abusive language to him, *Page 473 the said James Leverette, in his presence and hearing, and did not in his presence and hearing call him "a God damned son-of-bitch." We are of the opinion that the facts proven do not sustain the charge of perjury as assigned, and there is a fatal variance between proof and allegation. While there is no doubt that perjury could have been assigned upon appellant's statement that he "did not bear or remember the language alleged to have been uttered by Sexton," yet the perjury here assigned is that appellant swore that Sexton did not use the language in question to him, nor in his presence; and the court erred in charging the jury, that if defendant is proved to have sworn falsely in regard to hearing or not hearing said language, then the falsity would be in regard to a material matter, for there was no assignment of perjury covering this proof and authorizing such a charge.
The judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.