The indictment alleges a trial in the County Court on an information for the offense of slander spoken of and concerning one Minnie Simpson by Ethridge in the following language, towit: "I would not be caught in daytime with that girl for one thousand dollars. She is nothing but a damned whore." It was alleged in the County Court in the information that appellant was sworn and testified as a witness in the case, and that he testified that he had had sexual intercourse with Minnie Simpson behind her father's store in Potosi. The indictment possibly may be sufficient to allege the materiality of the testimony, but it is doubtful. I will not write, however, upon that inasmuch as my brethren in the companion cases of Reed v. State and Cutbirth v. State, this day decided, have held the indictment sufficient.
1. There are several attacks made on the record because there was no evidence introduced on the trial showing that Ethridge, the defendant in the slander case, had ever used the language imputed to him in the information in the County Court; in fact, the statement of facts *Page 328 does not show that Ethridge ever made the statement. Without this appellant's testimony, under this indictment, would not be material. His testimony, if material, in the County Court arose out of the fact that it was germane to the allegation that appellant had said of Miss Simpson that she was a whore, and if he testified in the County Court it was in aid of appellant's side of the case and to sustain his statement that she was a whore. If Ethridge did not make the statement that Miss Simpson was a whore, then appellant's testimony would not be material. It is a well settled rule under the decisions wherever that question has come, that the indictment must not only allege the materiality of the testimony but it must also be shown as a prerequisite to conviction that the testimony was material. Mr. Branch thus tersely and correctly states the rule: "If the statement on which perjury is assigned is not shown by the evidence to be material, conviction will not be sustained." Branch's Crim. Law, sec. 647; Garrett v. State, 37 Tex. Crim. 198; Pyles v. State, 47 Tex.Crim. Rep.; Liggett v. State, 47 Tex.Crim. Rep.; Maroney v. State, 45 Tex. Crim. 524; McVicker v. State, 52 Tex.Crim. Rep.; Wilson v. State, 27 Texas Crim. App., 47; Lawrence v. State, 2 Texas Crim. App., 479. In the Garrett case, supra, it was said: "The authorities require that the indictment shall show the materiality of the alleged false testimony, or shall allege that the same was material; and in either event, as we understand it, the facts must be proved which show the materiality of the alleged false testimony. If the assignment is based on false testimony delivered in a judicial proceeding, so much of the record in that proceeding must be shown as to authorize the court to declare that the testimony alleged to be false was material to some issue in the case. Mr. Bishop says: `The allegation of materiality must also be proved. It is not enough that the testimony was actually admitted; yet it suffices that the indictment sets out the facts whence the materiality judicially appears. Where it does not, the course is to prove all or so much less than all of the pleadings and evidence brought forward at the former trial as will duly present the question; whereupon the court, not the jury, will decide, as of law, whether or not what the defendant is shown to have testified to therein was material.' See 2 Bishop's New Crim. Proc., sec. 935. Our own court has followed the principle here laid down. See Lawrence v. State, 2 Texas Crim. App., 479, and Wilson v. State, 27 Texas Crim. App., 47." Presiding Judge White delivered the opinion in the Wilson case, supra, and the head-notes state correctly the rule as follows: "It is essential in a perjury case not only that the indictment shall allege that the court before which the judicial proceeding in which the perjury is charged to have been committed had jurisdiction of such judicial proceeding, but that fact must be established by the proof." In the case from which that proposition was stated it was held that the evidence was not sufficient because the complaint which formed the predicate of the information was not introduced in evidence. Judge White said: "Without a complaint an information would be wholly invalid — *Page 329 would confer no jurisdiction upon the court, and would be worthless for any purpose. It follows, then, that in order to sustain an allegation of judicial proceeding by information, not only must such information be introduced in evidence but the complaint upon which it is based or founded, must be also introduced." So in this case, the basis of the prosecution was that appellant committed perjury in the County Court in a trial where Ethridge was charged with the slander of Miss Simpson by calling her a "damned whore." It was upon this issue, if upon any issue in the County Court, that that case was tried, if in fact it was tried. The information and complaint in the County Court were introduced in evidence, but these are all the proceedings of the County Court which were introduced. No witness testified in this case that Ethridge ever made any such statement. The entire record is singularly and strangely silent upon that question. If it was proved in the County Court that Ethridge made the statement, and that in support of his contention, or the truthfulness of his statement imputed to him, appellant appeared and testified that he had had intercourse with Miss Simpson, his testimony would be material, because it went directly to the issue. If Ethridge made that statement, it should have been proved on the trial of this case in order to show the materiality of appellant's testimony in that he stated he had had intercourse with Miss Simpson. If Ethridge made no such statement as charged in the information, then appellant's testimony would not be material on the question, for in that event there would be nothing before the court. In a perjury case the alleged false statement must be material — not only alleged so in the indictment, but it must be so proved. The strength of the materiality would not be questioned, but the fact that it was material was the paramount question. Unless it was material the State had no case, for perjury is based upon the fact and the law which says that the alleged false testimony must be material. Without showing that Ethridge had made that statement, the State failed to show the materiality of appellant's testimony that he had had intercourse with Miss Simpson. It must be remembered that the materiality in a perjury indictment bears upon the issue charged in the indictment and not on the general broad proposition he may have sworn a lie or stated a falsehood. That falsehood, if it was one, must bear upon the issue stated in the indictment, and must be material to that issue. The mere allegation of an issue in an indictment does not prove itself; it may be sufficient as pleading but the pleading must be proved to be true and by two witnesses or one witness with strong corroborating testimony. If this record had shown that Ethridge made the statement imputed to him, we would have a different question, but inasmuch as this record does not show that Ethridge ever made such statement, the State has failed to show the materiality of the alleged false evidence of appellant. This is sustained by all these cases that I have heretofore cited.
2. Miss Fuller was a witness to impeach Miss Simpson. Miss Simpson denied she ever had intercourse with appellant or anyone else. *Page 330 Miss Fuller testified that some three or four years prior to the trial of this case Miss Simpson told her that she had intercourse with Harry Self three times on one trip. The State then introduced some witnesses by whom it proved that Harry Self had testified in the County Court that he had never seen anything improper in the conduct of Miss Minnie Simpson. The court admitted this over the many objections urged by appellant. This was error. This was not impeaching testimony so far as Miss Fuller was concerned. She had not stated anything one way or the other what Self had said to her. She had testified, however, that Miss Simpson had informed her that she had intercourse with Self. Self was not produced as a witness, nor offered to be produced as a witness, although he could have been had before the court, but even had he been before the court he could not have impeached Miss Fuller. No predicate had been laid for it, and no conversation was shown or attempted to be shown that ever occurred between them. It was hearsay evidence pure and simple, and to make the error the more glaring the court verbally instructed the jury that this testimony was admitted upon the question of the credibility of Miss Fuller. By no possible legal construction could it affect the testimony of Miss Fuller. Judge Harper, in the Reed case, supra, holds this to be error, and correctly so, and it is unnecessary to discuss this further. In this connection it might be stated they were permitted to prove that Self had testified in the County Court that he had never had intercourse with Miss Simpson. This was a part of the same matter, and it was erroneously admitted under what has been said.
3. Another complaint is urged against the admission of testimony by the State, over proper objection, that some of the witnesses had attended church gatherings and social functions which Miss Simpson also attended. The court seems to have admitted this testimony on the theory it tended to show the extent and character of knowledge possessed by witness as to general reputation of Miss Simpson. We do not believe this was admissible. The State introduced evidence of good character and reputation of Miss Simpson, but this character of testimony was not admissible for that purpose, and upon another trial it should not be permitted to go to the jury.
4. Another bill complains that the court erred in permitting Miss Simpson to testify that she submitted to an examination by some physicians to determine the fact that she was a virgin. The testimony of the physicians was admitted, and Miss Simpson also testified that the examination was made. The physicians testified as to their conclusion or opinion about that question favorably to the State, and the State was permitted to show by the girl that she willingly underwent or submitted to the examination by these doctors. This ought not to have been admitted. Her willingness was a condition of the mind on her part which ought not to be permitted to influence the jury against the defendant. He was in no way responsible for the condition of her mind and knew nothing of it. It was not a fact to be considered by the jury in passing on appellant's attitude of guilt or innocence, and *Page 331 was not a circumstance to be weighed against him. It was in the nature of a self-serving statement and act or mental condition upon the part of the witness unknown to appellant and which could be in no way binding on him.
There are other questions in the case of more or less moment, some of which the writer thinks reversible, but my brethren have taken the other view and I do not care to write further in this opinion.
For the errors indicated the judgment is reversed and the cause remanded.
Reversed and remanded.