Conviction for perjury. Appellant, Buller, was before the grand jury as a witness. The grand jury were inquiring into a charge of the supposed theft of a yearling, the property of William Rhone. The indictment alleges that it was a material issue before the grand jury whether G.W. Buller and Charles Smith had stolen said yearling. The matter assigned for perjury appears from the following facts, alleged in the indictment: "That G.W. Buller did state that himself and Charles Smith were gathering cattle to carry to Houston. As they went through the bottom, Charles Smith drove the Rhone yearling into the herd, claiming he had bought it. As they were driving the cattle towards Houston, some freedmen came up and claimed the yearling for Rhone. They drove the yearling to Houston and sold it; and while inquiring into this matter, Buller, being a witness before the grand jury, stated that the cow and calf delivered to Rhone in payment for the yearling taken by him and Smith to Houston, and then disposed of, were the property of Smith and not his (Buller's) property." The indictment does not in terms allege that this statement was material. Does the indictment allege facts which make the statement material? It does not, for we call not possibly perceive the materiality of this statement from the facts stated in the indictment. It may be contended, as the indictment charges in terms "that it then and there became and was a material inquiry before said grand jury * * * whether G.W. Buller and one Charles Smith did steal a yearling, the property of William Rhone," that this is sufficient. The matter before the grand jury was whether appellant and Smith had stolen Rhone's yearling. This was the main fact — the factum probandum — and of course was in a certain sense material. The testimony of witnesses — in fact, the whole investigation — was for the purpose of ascertaining the truth of the accusation. Did appellant and Smith, or either of them, steal Rhone's yearling? This was the fact to be established to the satisfaction of the grand jury. The subject matter of inquiry — the theft of a yearling — was within the line of the grand jury's duty, and should have been investigated. But the main fact can never properly be charged as being material. In every trial the factum probandum is the matter to be adjudicated. Facts tending to elucidate and settle the main fact are material. The character and credibility of witnesses are material. The rule of pleading requires that the indictment should allege that the statement assigned for perjury is material, or state facts which make the statement assigned material. To allege that the main fact or matter under investigation is material will not be sufficient. The statement *Page 554 assigned for perjury in this case is that appellant stated that the cow and calf delivered to Rhone were the property of Smith, and that they were worth about $8; that when they went to William Rhone's house and offered him pay for the yearling he refused to take it; that on or about the 6th day of May they went back to William Rhone, and carried a cow and calf, delivered them to Rhone, and gave him $2.50; that said cow and calf and the $2.50 were given to Rhone to pay for the yearling Buller and Smith were accused of stealing; and that said Buller then and there testified that said cow and calf were the property of Charles Smith, and not his (Buller's) property. Perjury is assigned upon the statement, made by appellant, "that said cow and calf, delivered to William Rhone, was the property of said Charles Smith, and not the property of him, the said G.W. Buller." Appellant and Smith were accused of or suspected with the theft of Rhone's yearling. The grand jury were investigating the matter as to whether or not Buller and Smith were guilty of the theft of said yearling. The matter assigned as perjury is not alleged as material, nor does the indictment state facts which make it material.
The judgment is reversed and cause ordered to be dismissed.
Reversed and dismissed.
DAVIDSON, Judge, absent.