After a careful consideration of the indictment in the light of the exceptions urged against it by counsel for appellant, we have reached the conclusion that, under the decisions in this State, it contains every averment essential to charge the offense of perjury.
1. It charges that the criminal action in which the alleged false statement was made was pending, at the time of the commission of the perjury, in the district court of Bexar county, State of Texas, upon an indictment duly and legally depending in said court, and that said court had jurisdiction of said criminal action. It does not charge directly that said indictment had been presented by the grand jury of Bexar county, nor that the defendant therein had pleaded to said indictment. It charges affirmative facts, however, ■which show that the indictment had been presented in said court by the proper grand jury, and that the defendant therein had pleaded thereto, and had been legally tried and convicted thereon in said court.
2. It is directly averred that the alleged false statement was material, and, besides this direct averment, such facts are alleged as show that the same was material. It is insisted by appellant’s counsel that because the alleged false statement was made on a motion for a new trial, which motion was filed more than two days after the conviction, it could not be considered by the court, and was therefore immaterial. “A new trial must be applied for within two days after conviction; but for good cause shown, the court, in cases of felony, may allow the application to be made at any time before the adjournment of the term at which the conviction was had.” (Code Crim. Proc., art. 779; Bullock v. The State, 12 Texas Ct. App., 42.) It appears from the record that the court entertained the motion for a new trial, although not filed within the prescribed time, and considered the same upon its merits. This action was within the discretion of the court, and must be presumed to have been upon good cause shown. It does not, therefore, affect the question as to the materiality of the matters contained in the alleged false affidavit, that the application for a new trial was not made within the time prescribed by law.
*148It is further insisted that, whether or not Bias Herrera said what defendant’s affidavit charged he said could have had no effect in determining whether or not Louis Hernandez was guilty of the theft of the colt, and therefore the statements in said affidavit of defendant were not material. Bias Herrera had testified in behalf of the State on the trial of Louis Hernandez. While his statements, as detailed in defendant’s said affidavit, might not have been competent evidence upon the issue of the guilt of Louis Hernandez, still they would, upon a proper predicate being laid, be admissible to affect the credibility of the witness Herrera, and to this extent at least would have been material even on the trial of Louis Hernandez. “ Swearing to a falsehood necessarily and absolutely ineffective is not perjury; but.it is otherwise when the falsehood is capable of a prima facie, though only temporary, effect;” and it can therefore make no difference what effect these alleged statements of Herrera might have had on the trial of Louis Hernandez, or whether or not they would have been admissible on that trial. If they were competent to be considered on the motion for a new trial, and wTere material with respect to such motion, and might have any effect upon the decision of the judge thereon, no matter how remote, contingent or ephemeral, they would be material within the meaning of the latv. (2 Whart. Cr. Law, § 1282; 3 Greenl. Ev., § 195.) It is nob with reference to the trial of Louis Hernandez that the materiality of the statements in defendant’s affidavit must be considered and tested, but they must be viewed with reference to their bearing upon the motion for a new trial, and when thus viewed we think their materiality is evident.
Without further discussing the exceptions made to the indictment, we will say that, notwithstanding the difficulty of framing a good indictment upon the rather complex facts of this case, the pleader has succeeded in preparing an indictment which, in our opinion, is unexceptionable, and we commend him for the care and skill evidenced by so perfect a pleading.
It is earnestly contended by defendant’s counsel that the testimony of Bias Herrera, the only witness who testified to the falsity of the statements contained in defendant’s alleged false affidavit, was not corroborated by any other evidence, and that therefore the court should have instructed the jury to acquit the defendant.
In the alleged false affidavit of defendant he stated that, about six months prior to the time of making said affidavit, Bias Hernandez, Sostenes Carrasco, and George De la Zerda said to him, “ let us brand a colt, a filly colt of Sam Barker, with the brand of Louis Hernandez, and afterwards notify Barker that Louis Hernandez *149had branded the filly.” He, the affiant, replied that he would not do so. Bias Hernandez then said, “ I will do it.” Afterwards, Sostenes Carrasco said to affiant: “We (meaning Bias Hernandez, Sostenes Carrasco and George De la Zerda) branded the filly of Barker with the brand of Louis Hernandez, and then killed the mare.” Each of the statements contained in said affidavit is assigned as perjury. It is averred in the indictment, in an innuendo, that “ Bias Hernandez ” meant Bias Herrera, and it seems to have been conceded throughout the trial that the two names referred to and meant the same person, though we find no evidence of that fact in the record. We merely call attention to this matter without pausing to consider and determine the effect of the omission to prove the innuendo, as counsel for appellant has not presented the question in his argument or brief.
On the trial the State, over the objections of the defendant, was permitted to introduce evidence tending to establish the guilt of Louis Hernandez of the theft of the colt, it being the same colt referred to in defendant’s said affidavit, and also to read in evidence the record of the conviction of said Louis Hernandez of said theft. This testimony was relied upon by the prosecution and argued to the jury as corroborative of the testimony of the witness Bias Herrera as to the falsity of the statements in defendant’s said affidavit, and is so relied upon and argued in this court. It is earnestly insisted by the counsel for appellant that this testimony was irrelevant, was not corroborative to any extent, and was, therefore, inadmissible.
Our statute provides that, “in trials for perjury, no person shall be convicted except upon the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence, as to the falsity of the defendant’s statements under oath; or upon his own confession in open court.” (Code Crim. Proc., art. 746.) And it is further provided that, “in all cases where by law two witnesses, or one with corroborating circumstances, are required to authorize a conviction, if the requirement be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction.” (Code Crim. Proc., art. 745.) These are but statutory declarations of the common law regulating prosecutions for the crime of perjury, and are founded on substantial justice. (Gabrielski v. The State, 13 Texas Ct. App., 428.) In such prosecutions, where the evidence presents “only oath against oath,” it is insufficient to warrant a conviction. (2 Bish. Cr. Proc., § 927.) But what is corroborating evidence? We have no statute which *150defines it. Mr. Bishop, upon this subject, says: “By the modern doctrine, a second witness is not required to turn the scale against the defendant’s oath, but circumstances or facts otherwise appearing may suffice. Bor example, independent corroboration of the testifying witness may be adequate. So, in the opinion of most courts, may be the defendant’s declarations contradictory of the testimony for which he is on trial. Hor would it be correct to say that the corroborating or ancillary evidence or circumstances must be of weight equal to the testimony of one witness. There must simply be enough plainly to turn the scale against the defendant’s oath.” (2 Bish. Cr. Proc., § 932.) But, as said by Mr. Wharton, “ it must go beyond slight and indifferent particulars;” but he further says that “we may view it as settled that, whenever the falsity of the defendant’s statement can be proved beyond a reasonable doubt, then there may be a conviction.” (Whart. Cr. Ev., § 387. See, also, 3 Bussell on Crimes, 9th ed., 78.)
Our statute, in using the words “strongly corroborated,” means that the corroborating evidence must relate to a material matter, that is, must tend to show the falsity of defendant’s oath, and, taken all together, it must be, in the opinion of both the court and the jury, strong, that is, cogent, powerful, forcible, calculated to make a deep or effectual impression upon the mind. But this character of corroborating evidence may be produced by the proof of independent facts and circumstances which, when considered separately, would not be sufficient, but when considered in the concrete would be strong. In other words, the corroboration may be by circumstantial evidence, consisting of proof of independent facts which together tend to establish the main fact, that is, the falsity of the oath, and which together strongly corroborate the truth of the testimony of the single witness who has testified to such falsity.
Does the evidence "which tends to prove the guilt of Louis Hernandez", of the theft of the colt, tend in any degree to show the falsity of defendant’s oath? Mr. Wharton says that the relevancy of evidence is to be settled by free logic, unless otherwise settled by statute or controlling precedent. All facts that go either to sustain or impeach a hypothesis logically pertinent are admissible. But no fact is relevant which does not make "more or less probable such a hypothesis. Belevancy, therefore, involves two distinct inquiries to be determined by logic, unless otherwise arbitrarily prescribed by jurisprudence: 1. Ought the hypothesis proposed, if proved, to affect the issue ? 2. Does the fact offered in evidence go to sustain this hypothesis? (Whart. Cr. Ev., § 24.)
*151How the hypothesis here proposed by the State is that Louis Hernandez branded and stole the colt. Is this hypothesis logically pertinent to the issue in this case, which issue is, did the defendant swear falsely when he stated that Bias Herrera proposed to brand the colt, and when he stated that Carrasco said they, Carrasco, Herrera and De la Zerda, had branded the colt and killed the mare? We confess that this question is, in our opinion, a difficult one to answer clearly and satisfactorily, and we have been unable to find any adjudicated case where a similar question has been determined. After bestowing upon it much thought, we conclude that the hypothesis that Louis Hernandez committed the theft of the colt pertinently bears upon the issue in this case. If he committed the theft, it is not probable that Herrera, Carrasco and De la Zerda also committed it, or that Carrasco told the defendant they had committed it. The commission of the theft by Louis Hernandez is a circumstance which, in our judgment, tends to show the improbability of defendant’s statements that Herrera, Carrasco and De la Zerda had proposed to commit the same theft, by branding the same animal in Louis Hernandez’s brand, and that Carrasco had afterwai’ds told him that they had branded said colt and had killed the mare. It is a very singular coincidence that Herrera, Carrasco and De la Zerda should propose to commit the very offense which Louis Hernandez, without any connection with them, afterwards committed, and that they should admit having committed it in exactly the same manner that it was committed by Louis Hernandez. While the fact of Louis Hernandez’s guilt may be a very slight circumstance in corroboration of Herrera’s testimony as to the falsity of the defendant’s oath, it is still a circumstance of a corroborative nature, and therefore relevant and admissible. Standing alone, this circumstance would not, in our opinion, be strong corroborative evidence within the meaning of the law, and had it been the only corroborative evidence, the court should have directed an acquittal.
It is asserted by counsel for defendant that there is no other corroborative evidence in the record. We do not agree to this assertion. Defendant stated in his affidavit that Herrera, Carrasco and De la Zerda were all present when the conversations which he details occurred. These, he says, took place about six months prior to the time of his making the affidavit. He made the affidavit on the 26th day of January, 1882. Six months prior to that date would have been in July, 1881. The theft of the colt occurred in the spring of 1881. De la Zerda was taken sick in January or February, 1881, went to San Antonio for medical treatment, and remained there *152until he died in the spring of 1881; but the exact date of his death is not stated. It is very clear from the testimony that De la Zerda was not alive after the spring of 1881, and yet defendant’s affidavit asserts in effect that he was alive in the summer of 1881, and was present and participating in the conversations about the colt. It also appears from a comparison of dates that these conversations took place after the theft had been committed, that is, after the spring of 1881, and yet he states that Herrera proposed to brand the colt, and said he would brand it. These manifest discrepancies in dates afford, we think, corroborative evidence of a very persuasive character, and, when considered in connection with the other facts and circumstances, we do not think the court erred in refusing to direct an acquittal, but very properly submitted the question as to the sufficiency of the evidence to the jury.
At. Gc. Anderson, an attorney at law, and who was the attorney of Louis Hernandez in the cause in which the alleged false affidavit by defendant was made, was introduced as a witness in behalf of the State on the trial of this cause, and testified in substance that the defendant said to him: “ I want to do all I can for my kinsman Louis Hernandez, who has been convicted to the penitentiary.” Witness thereupon heard defendant’s statements and reduced the same to writing, and read over and explained the writing to the defendant, and thereupon the defendant swore the contents thereof before G-eorge Dashiell, the clerk of the district court. Defendant told witness to use said paper in support of the motion for a new trial in the Louis Hernandez case, which witness did, the same being the affidavit upon which the perjury is assigned. When the testimony of this witness was offered, defendant objected to it upon the ground that Anderson, being the attorney of Louis Hernandez, would not be permitted to testify as to any fact which had come to his knowledge by reason of such relationship. This objection was overruled and the defendant excepted.
Our statute provides that “ an attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which came to the knowledge of such attorney by reason of such relationship.” (Code Crim. Proe., art. 733.) This is substantially the well settled rule of the common law. (Sutton v. The State, 16 Texas Ct. App., 490.) Air. Greenleaf says: “ The rule is clear and well settled that the confidential counselor, solicitor, or attorney of the party cannot be compelled to disclose papers delivered, or communications made to him, or letters or entries made by him in that capacity. This *153protection, said Lord Brougham, is not qualified by any reference to proceedings pending, or in contemplation. If, touching matters that come within the ordinary scope of professional employment, they receive a communication in their professional capacity, either from a client or on his account and for his benefit in the transaction of his business, or, which amounts to the same thing, if they commit to paper in the course of their employment on his behalf matters which they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers in any court of law or equity, either as party or as witness.” (1 Greenl. Ev., § 237.) Hr. Wharton says this “ privilege extends to all knowledge possessed by the lawyer which he would not have obtained if he had not been consulted professionally by his client.” (1 Whart. Ev., § 577.) Hr. Stephen says: “ Ho legal adviser is permitted, whether during or after the termination of his employment as such, unless with his client’s express consent, to disclose any communication, oral or documentary, made to him as such legal adviser, by or on behalf of his client, during, in the course, and for the purpose of his employment, whether in reference to any matter as to which a dispute has arisen or otherwise, or to disclose any advice given by him to his client, during, in the course, and for the purpose of such employment. It is immaterial whether the client is or is not a party to the action in which the question is put to the legal adviser.” And again this eminent author says: “The tendency of modern decisions has been to extend rather than to narrow the rule, from a conviction that, though sometimes the cause of justice might be advanced by compelling disclosures, the evils that would result would greatly overbalance the possible advantages.” (Stephen’s Ev., arts. 115, 116. See, also, upon this subject, Eoscoe’s Or. Ev., 7th ed., pp. 150 and 828, and 1 Wait’s Act. & Def., p. 468.)
Our statute, we think, states the rule more clearly and more comprehensively than any of the authorities to which we have referred. It extends the privilege to any fact which came to the hnovcledge of the atto7'ney by reasoTi of such relationship. There is no qualification except that it must be a fact which he learned by reason of his relationship as an attorney to the business to which such fact has reference. It is not required that information of such fact shall come from the client. It matters not from what source it has been obtained; if it was obtained because of the relationship of attorney in and about that particular business, it is privileged. How, apply *154this rule to the testimony of Anderson. He was the attorney of Louis Hernandez in the theft case. As such attorney he was approached by the defendant, and in the capacity of such attorney the defendant made to him, and he received, certain statements having reference to the Louis Hernandez case. All that transpired between Anderson and the defendant had reference to said case, and all the information obtained by said Anderson from the defendant was obtained by reason of his relationship as an attorney in that case.
It is clear to our minds that the matters testified to by Anderson were, under our statute, if not at common law, privileged and should not have been permitted. We are further of the opinion that Anderson’s testimony was material and calculated to prejudice the rights of the defendant, and that therefore the admission of it was such error as requires that the conviction be set aside.
It is insisted by counsel for defendant that, “ to authorize a conviction for perjury on a false statement contained in an affidavit made by a marksman (and especially if the affidavit be in a language not understood by the affiant), it must be proved by the officer who administered the oath that the affidavit was read over to the affiant, and explained to him, and that other evidence of his knowledge of the contents of the affidavit will not be allowed. Counsel cites us to but one authority in support of this proposition, which is the English ease of Rex v. Hailey, 1 Car. & Payne, 258. In that case it was held as contended for in the above proposition. Justice Littledale said: “As the defendant is illiterate, it must be shown that she understood it. In those cases where the affidavit is made by a person who can write, the supposition is that such person was acquainted with its contents; but in the case of a mark-man it is not so. If in such a case the master, bj jurat, authenticates the fact of its having been read over, we give him credit; but if he does not, and the fact were so, he ought to be called to prove it. I should have difficulty in allowing the paroi evidence of any other person to that fact.” This case is cited by JVIr. Eoscoe, without comment, in his work on Criminal Evidence, page 821. Mr. Green-leaf says: “If the document appears to have been signed by the prisoner with his name, it will be presumed that he was not illiterate, and that he was acquainted with its contents; but, if he made his mark only, he will be presumed illiterate, in which case some evidence must be offered to show that it was read to him, and for this purpose the certificate of the magistrate or officer in the jurat will be sufficient.” He cites no other authority except Rex v. *155Hailey, supra. Mr. Russell says: “If perjury is assigned upon an affidavit made by a marksman, either the jurat must state that the affidavit was read over to the defendant, or it must be proved that it was so read,” and he cites Rex v. Hailey as authority. (3 Russell on Crimes (9th ed.), p. 98.)
We conclude from these authorities that the proposition of defendant’s counsel is the law, except in so far as it confines the mode of making proof of the defendant’s knowledge pf the contents of the affidavit to the testimony of the officer who administered the oath. We can see no good reason why the fact of such knowledge should not be, like any other fact, proved by any competent evidence. Thus, if airy person other than the officer read over and explained the affidavit to him, before he swore to it, or if he stated that it had been read over and explained to him, or that he knew and understood its contents, we can perceive no reason why such evidence would not be as competent and as satisfactory proof of his knowledge as would be the jurat, or the testimony of the officer who administered the oath to him.
In the case before us, the affidavit was subscribed by the defendant by making his mark thereto. The affidavit is in the English language, and it was proved not only that the defendant was illiterate, but that he was not familiar with the English language. The officer’s jurat to the affidavit is in the usual form, that is, “ Sworn to and subscribed before me,” etc., and does not certify that the document had been read over to the affiant, or that he understood the contents thereof. Dashiell, the officer who administered the oath, testified that he could not say whether or not the defendant knew the contents of the affidavit at the time he signed and swore to it, and that his recollection was that he did not read it over to him but simply asked if he knew the contents of it, and, upon receiving an affirmative answer, administered the oath. He does not state, however, to whom he propounded the question as to defendant’s knowledge of the contents of the affidavit, whether to the defendant himself or to Anderson, the attorney, who was present and presented to him the affidavit; nor does he state whether the defendant or said Anderson answered said question. If it had been testified by this witness that the question was propounded to and understood and answered affirmatively by the defendant, this, in our opinion, would have been sufficient proof of defendant’s knowledge of the contents of the affidavit, without showing that it had been read over to him. But Dashiell’s evidence, as we find it in the record, does not, we think, prove that defendant had knowledge of the contents *156of the affidavit at the time he swore to it. True, this knowledge was fully shown by the testimony of Anderson, but his testimony being, in our opinion, incompetent, cannot be considered for any purpose.
Because the court erred in admitting the testimony of the witness Anderson, and because the evidence does not show that defendant knew the contents of the affidavit at the time he made it, the judgment is reversed and the cause is remanded.
Reversed and remanded.
[Opinion delivered May 6, 1885.]