At a former day of this term the judgment of the trial court was affirmed. Appellant has filed a motion for a rehearing, and insists that the indictment should be quashed. In Bradberry v. State, 7 Texas Crim. App., 375, this court held:
"A party not only commits perjury by swearing falsely and corruptly as to the fact which is immediately in issue, but also in swearing falsely and corruptly as to material circumstances tending to prove or disprove such fact; and this without reference to the question whether such fact does or does not exist. It is as much perjury to establish the truth by false testimony as to maintain a falsehood by such testimony, and the fact that the former may lead to a correct decision is immaterial," citing The Commonwealth v. Grant, 116 Mass. 17; 1 Hawley's Am. Cr. Law, 500.
In Davidson v. State, 22 Texas Crim. App., 372, the court quotes the above approvingly, and adds: "If the statement tends even circumstantially to the proof of the issue, it will be deemed material." (2 Arch. Crim. Prac. Plead., 8th ed., p. 1727.) In the case of State v. Hathaway (2 Nott and McCord, 118), it was said that to constitute perjury it was not necessary that the particular fact sworn to should be immediately material to the issue, but it must have such a direct and immediate connection with a material fact as to give weight to the testimony or the point.
Mr. Bishop says: "The true test would seem in reason to be *Page 651 whether the evidence could have properly influenced the tribunal. . . . Where the incidental matter is calculated to incline the jury to give more ready credit to the substantial fact, it will sustain a conviction for perjury if wilfully false." (2 Bish. Cr. Law, 3d ed., secs. 1036-1037.)
The indictment was sufficient and perjury could be predicated upon the alleged false testimony.
There are several criticisms of the charge of the court in the motion for a rehearing, but this court has always held that we would not consider grounds that were not assigned in the motion for new trial. By reference to the motion for a new trial, page nine of the transcript, we find no complaint was made in the court below in reference to the charge of the court. While we think the charge is hardly susceptible to the criticisms contained in the motion for rehearing in this court, however, no complaint having been made of these matters in the trial court, we can not consider them. In Magee v. State, 43 S.W. Rep., 512, this court holds: "Under the Act of Twenty-fifth Legislature, which requires that exceptions shall be reserved at the time the charge is given or brought forward in a motion for a new trial, an assignment can not be considered not reserved by a bill of exception nor in the motion for a new trial.
The motion for rehearing is overruled.
Overruled.