An indictment for perjury is sufficient, in respect to the materiality of the alleged false statement, if it directly avers the materiality, or if it alleges facts which make the materiality apparent. (Massie v. The State, 5 Texas Ct. App., 81; Mattingly v. The State, 8 Texas Ct. App., 345.) In this case there is a direct averment in the indictment that the statements upon which perjury is assigned were material. In all respects the indictment is in accordance with approved forms, and the court did not err in overruling defendant’s motion in arrest of judgment based upon supposed defects in said indictment.
It was not error to permit the prosecution to prove the proceedings in the trial of Parker and the testimony delivered by defendant on that trial. Such proof was warranted by the allegations in the indictment, and was relevant and admissible for the purpose of showing that the alleged false statements were made in a judicial proceeding, as alleged in the indictment, and' that said statements were material to an issue in the trial of said' proceeding.
It was clearly proved that the alleged false statement was. material to an issue in the Parker case. An issue in that case was, whether or not Parker killed Webb in self defense. Upon that issue defendant testified to facts which tended strongly to. prove that Parker acted in self defense. He testified that he was near when the killing occurred, and saw a portion of the difficulty, and then detailed what he saw of said difficulty. His statement that he was present on the occasion, and in a position which enabled him to see the acts about which he testified, was-, certainly material; for, if he was not present, or, if present, was-not in a position that he could see said acts, his statement that he did see them, and his testimony as to what he saw, would be manifestly false and of no weight whatever. It might be that, the prosecution could in no other way disprove his testimony supporting Parker’s plea of self defense than by showing that *105said witness was not present at the time and place of the killing, or, if present, that he was not in a position that he could possibly have seen what he testified he did see.
Opinion delivered October 27, 1886.We agree with the learned trial judge that the evidence of the-prosecution establishing the guilt of the defendant is not wholly circumstantial. There is the positive evidence of more than one witness that, at the time Parker shot Webb, the defendant was not at the place of the shooting, but had gone to his home, some-distance in the country. This positive testimony is corroborated strongly by circumstantial evidence. Therefore, as there is. direct evidence proving the falsity of defendant’s statements in regard to his' presence and position at the time and place of the killing,"it is not necessary that we should consider and determine the interesting question presented and argued by counsel for defendant, to wit: Can a conviction for perjury be sustained, under our statute, when the evidence proving the falsity of the statement upon which the perjury is assigned is wholly circum-* stantial.
As to the charge of the court, it is full, fair and liberal to the defendant, presenting the whole law of the case correctly; and hence it was not error to refuse the special instructions requested by the defendant.
There is evidence sufficient to support the conviction, and the objection made to the sufficiency of the verdict, that it does not find the defendant guilty, but finds him “guilly,” is not well taken. (Curry v. The State, 7 Texas Ct. App., 91; McMillan v. The State, Id., 100; Walker v. The State, 13 Texas Ct. App., 618.)
The judgment is affirmed.
Affirmed.