On Motion for Rehearing.
Hurt, Judge.The question herein raised arises on a motion for rehearing. While it was considered and passed upon in the opinion affirming the judgment, it was not discussed at length. Being again pressed in support of the motion, it will be more extensively treated.
Perjury was assigned upon the statement that appellant Anderson saw Green Wright have a pistol at the Masonic hall in Henderson county, where the colored people were holding a festival. The charge of the court in the most explicit terms directed the jury to a finding upon the truth or falsity of this statement. The instruction on this head was to the effect that, though they might believe that the other evidence given at the same time and upon the same trial by appellant was false, yet, in order to convict, the jury must conclude that this particular statement upon which the perjury was assigned was false. After this instruction, in which the court carefully confined the issue to the truth or falsity of the statement, the further instruction was given that the jury would look to all the evidence given before them, which, in their judgment, had a bearing upon the question, in determining whether or not defendant testified on the trial of Green Wright that the said Wright had a pistol on the *721occasion referred to; and, if so, whether such statement was true or false.
. Upon the trial of Wright for carrying a pistol, appellant, Anderson, testified, in addition to the fact that 'Wright had a pistol, to certain attendant circumstances, such as that he (Wright) took it out from a pair of saddle bags in the presence of certain named persons. Perjury was assigned upon the concomitant statements also. There was evidence strongly tending to show that each of them was false.
It is evident that, although the charge confined the jury to the statement assigned as perjury, viz., the appellant saw Wright have the pistol at the festival at the time and place named, the jury are required by the Charge to look to all the evidence, and hence to all the statements made by Anderson, whether assigned for perjury or not, in determining whether the statement assigned was true or false. To the instruction requiring the jurjr to look to all the evidence in determining the truth or falsity of the material statement assigned as perjury, counsel for defendant earnestly and with great confidence objects, and in support of the objection relies upon the case of The State v. Brice, 43 Texas, 532. The case is in point, and most clearly supports the objection.
Before entering upon a review of the Brice case, we desire to make some observations, with regard to a question sometimes used with reference to perjury. It frequently happens, in well considered decisions of the court, that the words “material,” “immaterial,” or “facts” are incautiously used. Ho “facts,” “matter,” or “statement” is materiál unless assigned as perjury, nor unless the fact or statement thus assigned is relevant to the issue in the case. This is the case in a particular sense, but not in a general sense. If not assigned as perjury, the fact or statement, though material, and though it could have been properly assigned, and though evidently false, a conviction upon it can not be had.
But suppose the matter or statement is not assigned for perjury, does it follow that because not asssigned it can not be relevant and competent evidence in determining whether the statement assigned is or is not false? The Brice case so holds, but to this conclusion we do not agree. Instance the case before the justice against Green Wright for carrying the pistol. Appellant, Anderson, is a witness upon the trial. He swore that he saw Wright have a pistol at the old Masonic hall in Henderson *722county, where the colored people were holding a festival at the date charged in the complaint., The State then closed its examination. Upon cross examination Anderson goes into the particulars, relating, amongst other things, that in the presence of certain named parties he saw Wright take the pistol from his saddle bags. Defendant introduces as witnesses the persons named, and proves beyond question by them that they were present as stated; that they saw Wright, but did not see him have a pistol; that they saw no saddle bags, and that he had none with him. What legitimate use can a defendant make of this impeaching testimony? Undoubtedly it can be used to impeach the witness. The reasoning being that, as he swore falsely about the saddle bags, he also swore falsely about the pistol. This needs no further illustration, it being self evident.
In harmony with this is the case of Rex v. Gardener, 8 C. P. 737. Gardener was indicted for perjury in “falsely deposing before a magistrate that the prosecutor had a venereal affair with a donkey, and that the defendant saw that the prosecutor had the flap of his trousers unbuttoned and hanging down, and that he saw the inside of the flap.. To disprove this, the prosecutor and his brother were examined. The former negatived the whole satement, and both witnesses swore that they went to the field mentioned in the deposition, and that the prosecutor parted from his brother to see whether the donkey, which was full in foal, was able to go a certain distance; that he was absent about three minutes; that the trousers he had on (which were produced) had no flap. In this case the evidence was held not only admissible but sufficient corroborative proof to sustain a conviction. It must be remembered that perjury was not assigned upon the statement relating to the flaps of the prosecutor’s pants, but if in fact there was no flaps to his pants, this would be a very cogent reason for believing that the entire statement with regard to the “venereal affair” with the donkey was a sheer fabrication.
Believing the doctrine of the Brice case to be unsanctioned by reason and authority, it is hereby overruled. As also establishlishing the doctrine that, on a trial for perjury, cognate perjuries may be proved, see Wharton’s Criminal Evidence, section 53, and The State v. Raymond, 20 Iowa, 528.
Separately and in consultation we have carefully examined the statement of facts, with the result of reaching the same conclusion as that announced in the opinion heretofore filed in the *723case. That there is much conflict in the testimony is true, but in passing upon its sufficiency to support the judgment, we are to take as true that which would support the verdict.
Opinion delivered at Galveston February 23, 1887.Viewing the testimony in this light, we can not say that it does not support the finding of the jury, and the motion for rehearing must therefore be overruled.
Motion overruled.