We agree to the reversal of this case on the grounds stated in the Reed and Cutbirth cases, this day decided, but we do not agree to the remainder of the opinion in this case, and respectfully dissent therefrom. We do not think it was necessary to show in this case whether or not Ethridge was guilty of the slander of Miss Simpson. That issue was tried and disposed of in the County Court, and on appeal to this court the judgment was affirmed. (Ethridge v. State, 169 S.W. Rep., 1152.) And it was not proper nor necessary to determine in this case whether or not Ethridge used the language alleged, and whether or not he was guilty of slander. Appellant was on trial under an indictment in which he was charged with having perjured himself by swearing falsely on that trial, and the issue on this trial was whether or not he had in that trial sworn to a certain state of facts, and if so was his testimony false and material to the issue then on trial. The indictment in this case alleged "that Ernest Cox, on or about the 21st day of April, One Thousand Nine Hundred and Fourteen (1914) and anterior to the presentment of this indictment, in the County of Taylor and State of Texas, did then and there unlawfully, before a regular term of the County Court of Taylor County, Texas, holden in and for said county, and then and there in session in said county, the Hon. E.M. Overshiner, judge of said court, presiding and in a certain criminal judicial proceeding, of which the said court then and there had jurisdiction, wherein the State of Texas was plaintiff and Henry Ethridge was defendant, and wherein Henry Ethridge was duly charged by information with the offense of slander spoken of and concerning one Minnie Simpson 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.' And wherein issue was duly joined between the said State of Texas and the said Henry Ethridge came on to be tried in due form of law, and was then and there tried before the said judge and a jury in that behalf duly sworn, and the said Ernest Cox then and there appeared as a witness in behalf of the said Henry Ethridge, defendant, and was then and there duly and legally sworn, and did take his corporeal oath before the said court and jury as a witness to testify in said cause, which said oath was then and there required by law and necessary to the ends of public justice, and which *Page 332 said oath was then and there administered to him, the said Ernest Cox, by the Hon. E.M. Overshiner, judge of said court as aforesaid, then and there having sufficient and competent authority, under the law, to administer the said oath to the said Ernest Cox in that behalf, and that upon the trial of said issue so joined between the said parties aforesaid, it then and there became and was a material question and inquiry, whether or not the said Minnie Simpson was a virtuous and chaste woman and whether or not the said Henry Ethridge had spoken the truth of and concerning the said Minnie Simpson, and it then and there became and was a material question and inquiry whether or not the said Ernest Cox had sexual intercourse with the said Minnie Simpson behind her father's store in Potosi, and the said Ernest Cox, being so sworn as aforesaid, then and there, on the trial of said issue, upon his oath as aforesaid, did falsely, wilfully and deliberately, before the Hon. E.M. Overshiner, judge as aforesaid and before the jurors so sworn as aforesaid, depose, state and testify, amongst other things, in substance and in effect following: that is to say that he, the said Ernest Cox, had had sexual intercourse with the said Minnie Simpson behind her father's store in Potosi, thereby intending and meaning that he, the said Ernest Cox, had had sexual intercourse with the said Minnie Simpson, the said alleged slandered female, and that the said Minnie Simpson was not a virtuous and chaste woman, which statement so made by the said Ernest Cox was then and there material to the issue in said cause; whereas, in truth and in fact, the said Ernest Cox, did not have and had not had sexual intercourse with the said Minnie Simpson behind her father's store in Potosi, and whereas, in truth and in fact the said Ernest Cox had never at any time had sexual intercourse with the said Minnie Simpson, and which said statement so made by the said Ernest Cox as a witness in said case in the manner and form aforesaid was deliberately and wilfully false, as he, the said Ernest Cox, then and there well knew."
The issues made by this indictment are made plain, and one of the issues under this indictment is not whether or not Ethridge made the alleged slanderous statement, but the issue is, was he in fact tried in the County Court with having made such statement, and was the testimony of appellant material to the issue tried in the County Court? Judge Overshiner testified on this trial, among other things: "I am county judge of Taylor County. I was acting as county judge in my official capacity during the months of March, April and May, 1914. I was county judge when Henry Ethridge was tried in my court charged with slander. I presided at that trial. I knew the defendant, Henry Ethridge, at that time. He was present at the time he was tried: He was tried before me as county judge, and before a jury composed of six men. The jury was sworn and empanelled to try the case of The State of Texas v. Henry Ethridge. I don't remember the day of the month that that case was tried, but my recollection is that it was at the April term of the County Court, beginning the third Monday in April. The information charging the defendant, Henry Ethridge, with *Page 333 slander, was read to the jury and the defendant, Henry Ethridge, pleaded not guilty to that information.
"The defendant, Ernest Cox, was present at that trial. I know Ernest Cox. He is in the courtroom at this time. That is him sitting over there. He appeared as a witness in the trial of the case of The State of Texas v. Henry Ethridge. He was legally and duly sworn by me as county judge. I had all of the witnesses to come in and hold up their right hands and administered substantially the following oath to them: `Do you and each of you solemnly swear that your testimony in the case now pending before the court shall be the truth, the whole truth, and nothing but the truth, so help you God.' The defendant, Ernest Cox, held up his hand and took that oath with the other witnesses. After being so sworn, he testified on behalf of the defendant, Henry Ethridge, in that trial. Henry Ethridge, at that time, was tried before myself and a jury in the County Court.
"The defendant, Ernest Cox, testified at that trial that he had had sexual intercourse with Miss Minnie Simpson. He testified that he had had intercourse with Miss Simpson behind her father's store, in Potosi, Texas. He stated that to the best of his recollection that that act of intercourse occurred in the summer of 1913."
The State then introduced the complaint and information, but as they both charge the same we insert only the information: "H. Rob Keeble, county attorney of the County of Taylor, State aforesaid, in behalf of said State, presents in the County Court of said county at the February term, A.D. 1914, of said court that Henry Ethridge, late of the County of Taylor, on or about the 24th day of January, A.D. 1914, and prior to the filing of this information, with force and arms, in the County of Taylor in the State of Texas, did then and there orally, falsely and maliciously and falsely and wantonly impute to one Minnie Simpson, then and there an unmarried female in this State, a want of chastity, in this, towit: He, the said Henry Ethridge, did then and there, in the presence and hearing of Horace Holly, Carl Putnam, and divers other persons, falsely, maliciously and wantonly say of and concerning the said Minnie Simpson: `I would not be caught in the daytime with that girl for a thousand dollars; she is nothing but a damned whore,' against the peace and dignity of the State."
The record then discloses that appellant in open court made the following agreement: "We admit, if the court please, that the affidavit and information here were duly filed in the County Court of Taylor County in the Henry Ethridge case and that these are the ones; and that the trial of Henry Ethridge was had on this complaint and this information, and that the County Court was held at the proper place."
By other witnesses it is shown that appellant did testify on the trial of Ethridge in the County Court that he, the said Ernest Cox (appellant), had had sexual intercourse with the said Minnie Simpson behind her father's store in Potosi.
Miss Minnie Simpson swears that Ernest Cox never at any time or place had carnal knowledge of her. Dr. Alexander, Dr. Armstrong and *Page 334 Dr. Estes testify that they made a physical examination of Miss Minnie Simpson, and that she had never had intercourse with any man. That she was a virgin. Many witnesses testify that the reputation of Miss Simpson for virtue and chastity is good; also her reputation for truth and veracity.
The allegation of slander was that Ethridge had said Miss Simpson was a whore. To prove that fact appellant took the stand and swore he had had sexual intercourse with the girl. The materiality of such testimony is patent to anyone, and it would not be material whether or not Ethridge made the statement. He was charged with having made the statement, and on trial of that case, in order to aid Ethridge in proving that she was a whore appellant took the stand and swore he had had sexual intercourse with the girl, and on the trial of this case the issue was not whether or not Ethridge had made the statement that Miss Simpson was a whore, but the issue was, did appellant on that trial swear that he had had carnal intercourse with the girl, and was it false if he did so testify, and was it material to the issue on trial in the slander case, and it would not be material whether the defendant in the slander case was guilty or innocent. While this record bristles with evidence that Miss Simpson was not a whore, yet if it had been shown in the trial of the slander case that she was, and yet on that trial appellant falsely testified he had had intercourse with the girl, he could and should be convicted of perjury. We thoroughly agree with the rule of law quoted by Judge Davidson from Mr. Branch on Criminal Law: "If the statement on which perjury is assigned is not shown by the evidence to be material, conviction can not be sustained." But the materiality of the assignment of perjury is shown by the evidence in this case as is manifest by that portion of the record and testimony hereinbefore copied, and we think anyone will readily recognize that when a trial is had and the issue being tried is whether or not a given female "was a whore," evidence by a man that he had had intercourse with the woman would be material to that issue, and have a strong tendency, if true, to show the truth of the charge. We also agree to what is said in Garrett v. State, 37 Tex.Crim. Rep.: (1) "The authorities require that the indictment shall show the materiality of the alleged false testimony, or shall allege that the same was material." The indictment in this case (hereinbefore copied) shows that the alleged statement was material to the issue, and also alleges that it was material.
(2) "On 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."
In this case the complaint and information was introduced; Ethridge's plea of not guilty is shown, and that a trial was had before Judge Overshiner in the County Court on the issue of whether or not *Page 335 the alleged slander was uttered, and whether or not it was true if uttered. As before said, the issue of Ethridge's guilt or innocence would not be an issue in this case, and the merits of that case should not be again tried on this trial. Whether or not he was guilty or innocent would not affect the guilt or innocence of appellant under this indictment. Again, we say we agree to what was said by Judge White in Wilson v. State, 27 Texas Crim. App., 47, quoted by Judge Davidson, but it has no application to this case, for in this case both the complaint and information were introduced in evidence, and they clearly show that the issue was in the County Court, and doing so we think anyone can see that the testimony of appellant on that trial was material to the issue involved in that case.
We do not deem it necessary to review the other authorities cited by Judge Davidson, but if one will read them we think it will be shown that the record in this case (that portion of it herein copied) shows that they and each of them hold the indictment sufficient and the testimony ample, if the State's testimony is believed, that appellant gave the alleged false testimony, and that it was false, and also shows the materiality of the alleged false testimony to the issue tried in the County Court.
As witnesses were permitted to testify to isolated extraneous matters tending to show that Miss Simpson was not a virtuous female, we think it permissible to show on cross-examination of these witnesses that they had attended church gatherings and social functions with Miss Simpson. This evidence would be admissible to rebut the isolated transactions to which they had testified.
As we have said in the Reed and Cutbirth cases, we think no error was committed in the above matters, nor in the other matters to which Judge Davidson refers but does not discuss.