The offense is perjury; the punishment, confinement in the penitentiary for two years.
I. R. Jones had been indicted for making an assault upon P. A. Cobb with a pistol which it was alleged Jones was unlawfully carrying. During an investigation of the charge against Jones appellant appeared as a witness before the grand jury, and, according to the testimony of the State, testified, in substance, that he had not requested Jones to go with him to the place of the alleged assault for the purpose of aiding him (appellant) in quelling a disturbance of the peace. Appellant was a constable, and the question before the grand jury was whether Jones was lawfully carrying a pistol after being called upon by the appellant to aid him in making an arrest on the occasion in question. Based upon appellant's testimony, the grand jury indicted *Page 497 Jones and thereafter he was brought to trial. Appellant appeared as a witness in Jones' behalf, and, in substance, testified that he had requested Jones, in his capacity as a peace officer, to aid him in quelling the disturbance. In short, appellant's testimony, if believed, showed that Jones was lawfully carrying a pistol. After appellant had so testified he was questioned by the district attorney concerning his testimony before the grand jury. In response to these questions he denied that he had testified before the grand jury that he did not request Jones to aid him in quelling the disturbance.
Perjury was assigned in the indictment herein on the statement of the appellant that he had not testified before the grand jury that he had not requested the aid of Jones on the occasion in question. The indictment charges the truth to be that he made such statement. There is a proper averment touching the materiality of the statement. Appellant's testimony on the trial of the case was injurious to the State, and the district attorney had the right to impeach him by showing that he had made a contradictory statement in regard to the matter before the grand jury. When he denied that he made the statement before the grand jury, when in fact, according to the testimony of the State, he had made it, "it being material to his credibility, it could be assigned for perjury, and, upon proper proof, conviction legally sustained." Whitaker v. State,36 S.W. 253.
The indictment having averred that the false statement was material to the issue, it was unnecessary that the allegations further show how such statement became material. Branch's Annotated Texas Penal Code, Section 840. We are constrained to hold that the indictment sufficiently charges the offense.
The proof on the part of the State was amply sufficient to sustain the allegations of the indictment.
The judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.