ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.In his motion for rehearing appellant renews his attack upon the indictment on the general ground that it fails to allege the materiality of the alleged false statement contained in appellant’s affidavit which was attached to the motion for new trial. We have again critically examined the indictment — which is incorporated in our original opinion — and fail to find any vice therein.
In his valuable work (Branch’s Ann. Penal Code) the author on page 474 states a principle supported by the authorities cited, as follows: “If the indictment fails to directly allege that the false statement was material to the issue, it cannot be sustained, unless the testimony of itself, and without extraneous aid, be so clearly material as that it would be supererogation to aver its materiality; or unless the facts and circumstances * * * are so alleged as to manifest its materiality. Smith v. State, 1 Texas Crim. App. 620; Martin v. State, 33 Texas Crim. *336Rep. 319; 26 S. W. 400 Buller v. State, 33 Texas Crim. Rep. 553; 28 S. W. 465. Weaver v. State, 34 Texas Crim. Rep. 554; 31 S. W. 400. Crow v. State, 49 Texas Crim. Rep. 103; 90 S. W. 650; Barber v. State, 64 Texas Crim. Rep. 96; 142 S. W. 579 * * * Bell v. State, 171 S. W. 239; Scott v. State, 171 S. W. 243.” Or, as stated in the Smith case, 1 Tex. Cr. App. 620: “Where the materiality of the evidence alleged to be false is shown by the nature of the case, no express averment of its materiality is necessary.”
Applying that principle to the present indictment we think the averments taken as a whole unquestionably show the materiality of the alleged false statement. Moreover we observe that after averring the alleged false statement it is particularly alleged “which said statement was material in said cause for the purpose of substantiating the allegations contained in said amended motion for a new trial.”
We think there was no failure in the evidence to show the materiality of the alleged false statement in the affidavit made by appellant.
We discover no basis supporting appellant’s contention that the court should have charged on circumstantial evidence. It is true as pointed out by appellant that the eleven other jurors testified that if any mention was made in the jury room while considering Vallone’s case that he had been charged with or accused of the murder of one Navarro they never heard such thing referred to. Appellant apparently overlooks the fact that each of the eleven jurors categorically denied that he mentioned any such thing.
- Appellant excepted to the court’s charge because it omitted to tell the jury “that the record in the main case, that is, the Vallone case, was admitted solely to show that such a case was pending against the said Vallone, but that the records in the Vallone case should not be considered by the jury as tending to prove the charge of perjury against the defendant.” We are cited in the motion for rehearing to Higginbotham v. State, 24 Tex. Cr. R. 508, 6 S. W. 201, as supporting appellant’s position that the failure of the court to respond to the foregoing objection to the charge was reversible error. There is no doubt that in some cases a failure to so limit certain evidence would be improper and the Higginbotham case (supra), furnishes such an instance.
Under the present record we fail to find how any part of the record in the Vallone case which was introduced in evidence *337by the State in this trial could possibly have been utilized by the jury to the hurt of appellant on the charge of making a false affidavit which was attached to an amended motion for new trial in Vallone’s case. Therefore, the failure of the court to limit such evidence does not appear to present serious question. Art. 666 C. „C. P. would seem to have application here. We note in this connection that the court did incorporate in his instruction to the jury the following: “* * * You are charged that the fact that Vincent Vallone was tried and convicted for the offense of murder is not evidence of the guilt of this defendant in this case.”
In addition thereto at appellant’s request he gave a special charge as follows: “You are instructed that you must not mention or discuss in your retirement whether or not a new trial was granted or refused in the Vallone case. Keep silence on that subject.”
The other matters urged in the motion for rehearing were sufficiently discussed in our original opinion.
Appellant’s motion for rehearing is overruled.