(concurring in part and dissenting in part).
The record fails to indicate that the counts in the indictment predicated upon principal affidavits were attacked in the trial court by demurrer, motion to quash, or otherwise, for self-contradiction of recitals in such affidavits, and they are not challenged in this court on that ground. The brief of appellants is silent in respect to the matter.
The two recitals are alternative in character, not self-contradictory. As such, they do not render fatally defective and void the counts based on them, and the evidence bearing upon each count was such that the jury could well have found that both were false. That was enough to warrant the verdict, and it is enough to sustain the judgment on appeal.
I am in accord with the views expressed by Judge PHILLIPS in his concurring opinion respecting the comment of the trial court and the instructions.
For the reasons thus outlined in brief, it is.my conclusion that the judgment should be affirmed in toto.