At common law an indictment for perjury must allege the day on which the perjury was committed, correctly, and a variance between the time alleged in the indictment and the time proved would be fatal. (2 Whart. Crim. Law, secs. 1291, 1314; Whart. Crim Ev., sec. 103; 1 Greenl. Ev., 87, 88.)
But this common law rule has been changed by statute in this State. All that is required as to the allegation of the time of the commission of the offense is that it state some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation. (Code Crim. Proc., art. 420.) And the date proved need not be the exact date alleged in the indictment. All that is required as to proof of the time is that the time of the commission of the offense be proved, and that the time proved be some date anterior to the presentment of the indictment, and not so remote as to show that a prosecution for the offense is barred by limitation. (Temple v. The State, 15 Texas Ct. App , 304.)
We are of the opinion that a new trial should have been granted the defendant because of the misconduct of two of the jurors in stating to the jury, while the case was being considered by the jury, that they knew the witness Elias Brown, *324who testified on the trial in behalf of defendant, and that he was a chicken thief, and. in their opinion, unworthy of credit, and had often lied to them. One of the jurors who made an affidavit in relation to said statements of said jurors, says that said statements did not influence his verdict, but may have had some influence on the verdict; that he heard a Mr. Price, who was on the jury, say that the talk did influence him. Three other jurors make affidavit that they heard said statements, but that their verdict was not influenced thereby. When a verdict was probably influenced by the statement of a juror to his fellows as to the character for credibility of a witness for the defendant, a new trial should be granted. (Anschicks v. The State, 6 Texas Ct. App., 524; McKissick v. The State, 26 Texas Ct. App., 673.) In this case it appears probable that at least one juror, Price, was influenced in his verdict by the statements of said two jurors as to the credibility of the defendant’s witness, Elias Brown.
Opinion delivered March 9, 1889.Such being the showing on the motion for a new trial, we think the court erred in refusing a new trial, and for this error the judgment is reversed and the cause is remanded.
Reversed and remanded.