(dissenting).
The indictment in this case is, in my opinion, fatally defective. I therefore enter my dissent to its approval.
It has so long been the established law of this state that it is now axiomatic that for one to be guilty of the crime of perjury by the giving of false testimony before a grand jury the false testimony must be material to the matter under investigation. 32 Texas Jur., Sec. 6, p. 785; McVicker v. State, 52 Texas *292Cr. R. 508, 107 S.W. 834; Weaver v. State, 34 Texas Cr. R. 554, 31 S.W. 400; Brooks v. State, 29 Texas App. 582, 16 S.W. 542.
It is equally well settled that the indictment in a perjury case must allege, in order to be sufficient, that the alleged false statement was materia] to the matter under investigation, or facts must be set forth in the indictment which make the materiality apparent. 32 Texas Jur., Sec. 19, p. 798; 30 Texas Digest, Perjury, Key 25, pp. 106-7.
In the absence of an allegation or showing of materiality, the indictment is fatally defective. Bell v. State, 75 Texas Cr. R. 401, 171 S.W. 239; McMurtry v. State, 38 Texas Cr. R. 521, 43 S.W. 1010; Martin v. State, 33 Texas Cr. R. 317, 26 S.W. 400.
Does the instant indictment meet these requirements? A reference thereto does not show that it does. Nowhere therein does it allege, by direct or positive allegation, that the testimony of appellant (H. H. Dodson) before the grand jury was material to the unlawful act which that body was then investigating — that is, whether Mary Ida Dodson forged the promissory note described in the indictment. There being no such allegation, we must next look to see if facts were alleged that show or demonstrate its materiality. No such facts are alleged.
The inquiry before the grand jury was whether Mary Ida Dodson “made' a certain false instrument in writing purporting to be the act of another,” in other words, whether Mary Ida Dodson committed the forgery of the instrument.
The instrument set forth in the indictment was a promissory note for the sum of $180, payable to the order of the Kermit State Bank and bearing the signature of three persons, viz., H. H. Dodson, R. S. Lowrance, and Bruce Cromer.
The general allegation that the forged instrument purported to be the act of another, without specifying whose act it purported to be, had the effect, because the note purported to be the act of three persons, of charging that all three names to the note had been forged.
The material inquiry before the grand jury, then, was not whether H. H. Dodson had or had not signed the note, but the issue, and only issue, before the grand jury was whether Mary Ida Dodson had signed the name of H. H. Dodson thereto.
*293The fact that H. H. Dodson testified that he had not signed the note did not show that Mary Ida Dodson had not done so.
The indictment, upon its face, demonstrates its invalidity under the applicable and controlling legal rules.
The appellant’s motion to quash the indictment should have been sustained.
The case should be reversed and the prosecution ordered dismissed.