ON MOTION FOR REHEARING.
LATTIMORE, Judge.We do not think the testimony of appellant’s attorney enough to cause us to set aside this con*19viction and reverse this case for lack of sufficient testimony. He said, in effect, that before making the affidavit for suspended sentence, in a pending burglary case, he asked appellant if he had ever been convicted of a felony, to which appellant replied that he did not know what that was, — and said “What is that?” and witness said, “Well, have you ever been sent to the penitentiary before, anywhere?” to which appellant replied “No, but I have paid a fine.” Following which conversation witness testified that appellant signed and swore to the affidavit in which was a statement that he had never before been convicted of a felony. This statement was shown to be false.
Appellant did not testify. While shown to be a Mexican, with but a limited knowledge of English, he had been in the courts only two months before his trial for burglary, in which former case he made application for suspended sentence, which he obtained; the contents of said application furnishing the basis of this prosecution for perjury. What was then said to him, or explained or told him, we do not know, but it appears he was given five years in the penitentiary for possessing intoxicating liquor for purposes of sale upon which sentence was suspended. Regardless of what the attorney may have said to appellant when he made the application on which this perjury is based, the question of whether he knew and understood its contents and made the false statement wilfully and deliberately, was a jury question. The jury were fully and plainly told in the charge of the court that they could not convict appellant if they had a reasonable doubt as to whether he made such false statement by inadvertence or mistake. The jury had before them the testimony regarding appellant’s criminal record. They were aware of the fact that there was no testimony before them as to what appellant had had explained to him in his other trial, in which he asked for a suspended sentence, or his otherwise understanding of the meaning of the words “convicted of a felony.”
It was thus before the jury trying appellant in this case that he had been twice prior thereto tried for felonies; in both which instances he had been convicted, one conviction being reversed on appeal. Appellant would be held to know the law.
Suppose the trial court had told the jury in his charge that if they found appellant did not know what was meant by the expression “convicted of a felony,” and if they found from the testimony that had he so known he would not have made the affidavit, then they should acquit, — and the jury after having had such charge given them should have found appellant guilty, —it would be evident that this court would have no right to set *20aside the verdict for lack of testimony. The state’s case can not be prejudiced because of appellant’s 'failure to have his theories of his defense fully submitted. We find ourselves unwilling to assent to the views expressed by appellant in his motion.
We still are of opinion that there was no variance between the indictment and the proffered testimony as to the fact that appellant had filed his application for suspended sentence in the Criminal District Court of Kleberg county, the indictment in this case having charged that he was then being tried in a district court. We think necessarily every criminal district court is a district court.
Being unable to agree with appellant, the motion for rehearing will be overruled.
Overruled,