This case was affirmed at the last Austin term, and now comes before us on motion for rehearing. Appellant strenuously insists that this case should be reversed because the issue on which perjury was predicated was not shown to be material. He alleges that we failed to pass on this issue in the original opinion, though it was raised; and he now invokes the decision of this court upon that question. It appears from the allegations in the indictment that the alleged perjury was committed by appellant in the trial of a suit in the District Court of Comanche County, in which Casey-Swasey Company was plaintiff against the Manchester Fire Insurance Company, the same being brought on an insurance policy for $1000, issued by said insurance company to one West on a certain stock of goods, furniture and fixtures; and by West transferred to appellant, J.T. Maroney; and by him transferred *Page 527 to Casey-Swasey Company. It is further alleged that on the trial of the case, appellant, J.T. Maroney, testified, as a witness, that the transfer of said policy from West to him was made for a valuable consideration; that said West owed him a bona fide debt of principal and interest, amounting to $1000. We do not state the allegations in the indictment accurately, but this was the effect thereof. It was averred that this testimony was upon a material issue in the trial of said case, inasmuch as the transfer from West to Maroney was without consideration, and was made for the purpose of hindering, delaying or defrauding the creditors of said West. It may be conceded that the allegations in the indictment showing the materiality of the issue upon which the allegation of perjury is based are sufficient; but this materiality must be responded to by the evidence; that is, the evidence adduced on the trial must show the materiality of the alleged false testimony to some issue in the case. We have carefully examined the record on this point. The pleading, that is the answer of defendant, states in general terms that West was indebted in large amounts to divers parties, and was not indebted to Maroney, but transferred the policy of insurance to said Maroney in order to defraud his creditors, etc., when in truth and in fact the said West owed the said Maroney nothing whatever for borrowed money; and that the effect of the transfer would be to mislead and deceive appellant as to the real beneficial owner of the proceeds of said policy, and would cause and might probably cause embarrassment and difficulty to defendant as to the proper party to make settlement with, and might embarrass defendant in litigation with reference to who was in fact and in law the beneficial owner of the proceeds of said policy. It is further shown in said pleading that the fire that caused the destruction of the insured property was originated and caused by the consent and knowledge and procurement of the said insured, etc. Portions of the policy were also introduecd. We copy one of the clauses, as follows: `This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject matter thereof, or if the interests of the insured in the property be not correctly stated herein, and in any case of fraud or false swearing by the insured touching any matter relating to this insurance or the subject matter thereof, whether the same be before or after a loss." Portions of the supplemental petition of the plaintiff were also introduced. The first count was a general demurrer to defendant's answer; the second count, a general denial; and the third count a plea that defendant had waived all rights as pleaded by defendant as warranties and set out, etc. The judgment in that case showed that defendant recovered; that is, he defeated plaintiff in the suit, which presumably was on the ground that West had fraudulently caused the fire. We would observe in this connection that no creditor of West is named in the proceedings, nor was there any intervention by any creditor whatever; nor is it disclosed or suggested in the record that defendant, *Page 528 Manchester Fire Insurance Company, in said civil suit would not have had the same defense, as far as it was concerned, against the suit of any transferee or holder of said policy, which it would have had against the insured West. The facts further fail to disclose, so far as we are able to discover, any debts at the time of the transfer by West to Maroney due by the said West to other parties. It may be conceded that the testimony abundantly shows that appellant, Maroney, swore falsely as to the payment by him to West of a valuable consideration for the transfer to him of said policy by West, but under all the authorities, as we understand them, the materiality of the false testimony must be averred in the indictment. This may be done in general terms; but its materiality must be proved by the evidence in the perjury trial. White's Ann. P.C., sections 328, 329. This may be done by introducing all the pleadings or so much thereof as sufficiently shows the materiality of the issue joined, or enough of the pleadings, together with the facts proved on the former trial, as would tend to show that the alleged false testimony was upon a material issue in the trial. 2 Bishop's Crim. Proc., sec. 935. This was not done. So far as we are advised, it was absolutely immaterial in said civil suit between Casey-Swasey Company and the Manchester Fire Insurance Company, whether the transfer of said policy was made with or without consideration as between West and Maroney, or as between Maroney and the plaintiff in that suit, the Casey-Swasey Company.
We note in this connection that the State relies on Insurance Co. v. Willis Bro., 70 Tex. 12. It does not occur to us that that case is in point. That was a contest between Willis Bro., who garnisheed the insurance company for a debt due them by the original insurer, Scott; but it seems that by the consent of the insurance company, before any loss by fire Scott had transferred the policy to Hargrave, who became ostensibly the owner of the insured property. In that case there was no question as to the fraudulency of the transfer of both the property and policy from Scott to Hargrave; that it was done to defeat the creditors of Scott, and both parties were instrumental in practicing a fraud upon the insurance company. It was held that this fraud practiced on the company vitiated the policy, and the garnisheeing creditors, Willis Bro., could not recover. In this case there was no proof that West owed any debts, or that the transfer by him was with the intent to defeat any creditors. Nor in our opinion, does that clause in the policy "in case of any fraud or false swearing concerning this insurance or the subject matter thereof, whether the same be before or after the loss," affect the question. This has relation to the insured West. Nor would it affect him even as to the policy upon an immaterial matter. Phoenix Ins. Co. v. Sherman, 43 S.W. Rep., 930; Marion v. Insurance Co., 35 Mo., 148; Titus v. Insurance Co., 81 N.Y. 419; Sullivan v. Hartford Ins. Co., 89 Tex. 665.
Nor in our opinion does the record show that the testimony was in *Page 529 anywise material as tending to mislead or deceive the insurance company as to the real beneficial ownership of said policy. In the absence of any showing of creditors of West, it is difficult to see how any complication could arise as to the ownership of said policy or the beneficial interests therein that would constitute a material issue.
However, it appears, since the submission of the case the prosecution has shifted its ground, and now contends that the alleged false testimony was material because it would tend to show that West, the original insured party, burned his house, and so defeat a recovery on the policy. If this be conceded as true, then, under a general allegation of materiality under the indictment and sufficient evidence adduced to show materiality, the position assumed would be correct. But, as we understand the indictment, it is not predicated upon a general assignment that the testimony was material; but the indictment proceeds to allege how said testimony was and became material. It is alleged to have been a material issue in the case whether or not the transfer of said policy from West to Maroney was made upon a valuable consideration; and it was averred that it was not upon a valuable consideration, but was made with intent to hinder, delay and defraud the creditors of said West. It being further averred in that connection that the said Maroney swore that the transfer was made by West to him for a valuable consideration due from West to him, to wit, certain borrowed money, amounting, principal and interest, to $1000. So that, the State having charged how said false testimony was material to the issue will be held to prove the allegations as laid in the indictment.
We would furthermore observe that if the indictment had set out the alleged false testimony, and then charged in general terms that it became and was upon a material issue in the case, then the evidence should show the materiality of said false testimony to some issue in the case, for, unless it be shown that the matter testified about could in some way affect the result of the suit, it could not be considered material. Meisner v. State,34 Tex. Crim. 588. That is, the question of materiality is for the court. But the record should contain enough of the testimony in order that the court might determine its materiality to some issue, and direct the jury accordingly. McAvoy v. State, 39 Tex.Crim. Rep..
We have examined the record in order to ascertain how the alleged false testimony would have aided the jury in said civil suit in determining whether or not West burned his house, which was insured. If West did not owe anything at the time of the fire, and the record does not disclose that he did (unless he owned Maroney) it does not occur to us in what way the transfer of his insurance policy subsequent to the fire to Maroney, with or without consideration, would tend to show that he set fire to and burned his house. The record, so far as we are able to discover, as stated above, does not aid us in solving this matter; and it falls far short of being sufficient to have authorized the judge in his *Page 530 charge to the jury to have informed them that the alleged false testimony was material upon the issue of whether West burned his house in order to procure the insurance. We hold that the record before us fails to show that the alleged false testimony was upon any material issue in the case. The motion for rehearing is granted, and the judgment is reversed and the cause remanded.
Reversed and remanded.