Appellant was convicted of perjury, and his punishment assessed at confinement in the penitentiary for a term of three years.
It is only necessary to consider one assignment of error, which questions the action of the court refusing to quash the indictment. The indictment shows that the alleged perjury was committed on the trial in the district court in a certain case, wherein appellant was plaintiff and the Gulf, Colorado and Santa Fe Railway Company was defendant, the same being for damages occasioned by alleged personal injuries sustained while plaintiff was in the employ of said railroad. In that suit plaintiff's deposition was taken, and among other things he was asked, *Page 229 the following questions: "Were you ever hurt on any railroad prior to being hurt by the Gulf, Colorado and Santa Fe, in August, 1902? Again, if you have testified that you were injured on any railroad or in any other way injured prior to being hurt in August, 1902, please state as to such injuries, the name of the railroad you were injured on; the time and place of injury, what was the cause of your injury, describe fully and particularly the circumstances under which you came to be hurt, what was the character of defect, if any, which caused your hurt. Again, did you ever make any claim against any of the companies in whose service you were when injured. If so with which of the companies did you make settlement? How much did each one of them pay you and when? What was the nature and extent of your injuries? What portions of your body were affected or hurt? Explain fully. How long were you troubled or did you suffer as a result of such injury or injuries," etc. To which questions, appellant replied, substantially, as follows: "No, sir, except he was hurt on the Pittsburg, Ft. Wayne and Chicago; and further, that he made no claim against any other company for injuries received by him. This testimony is alleged to have been material in said cause, and it is traversed as false. The indictment specifically alleges that appellant had previously in the same year (1902) set up a claim against the Missouri, Kansas and Texas Railway Company of Texas, for damages for personal injuries, and had been paid by said company the sum of $800 on said account. Motion to quash was predicated on the generality of the question asked; to wit: that said question or questions failed to specify any date when appellant should have worked for any railroads, and failed to give any date when defendant made any claims to any railroad, and fails to state the name of any railroad, the defendant worked for; and because the indictment setting out the traverse of each of said allegations, and that appellant's testimony was false, and that he knew it to be false, fails to give any dates or specify the times and dates when the defendant worked for any railroads, and when he was hurt by any railroads, and when he presented any claim to any railroad, or did any of the acts mentioned in said indictment. We have no doubt that the matter intended to be inquired about was a material issue in said cause then on trial. If appellant (plaintiff) had admitted that he had sustained injuries on other roads, and had made claim for damages on said account, the circumstances thereof may have been used to discredit him before the jury. If he had denied having made a claim against the other roads for damages, had the questions been properly propounded, it would have afforded the subject of impeachment. But we understand the rule to be, both in civil and criminal cases, when a collateral matter of this character is inquired about, the question or questions propounded should call the witness' attention to the circumstances; that is, the time, place and persons, and possibly the other circumstances involved in such transaction. The question should be so definite that, if the witness denied the matter inquired about, he may be impeached thereon. As we said in Meeks v. *Page 230 State, 32 Tex.Crim. Rep.: "The time, place and sufficient of the circumstances to call the attention of the party to the transaction under investigation should have been stated, so that he might have known of what he was to testify. Certainly, if answers to such questions, could not constitute a predicate for the impeachment of the witnesses, it ought not to be sufficient to authorize his conviction of one of the most infamous of all felonies." McMurtry v. State, 38 Tex.Crim. Rep.; Higgins v. State, 38 Tex.Crim. Rep.. Recurring to the facts of this case, the questions state no particular time when appellant should have been hurt, or injured by any other railway; called the witness' attention, to no particular railroad, that he had presented any claim against for personal injuries; nor did the questions point to any incident connected with any claim against any other railroad, which might have served to call his attention thereto. The questions were indeed so general that we scarcely apprehend any one would claim a negative answer thereto, would furnish the basis for the impeachment of the witness. Indeed, if we recur to the record, we find that this same witness, when he was subsequently placed on the stand on the trial of the case, and his attention was directed to his claim against the M.K. T. Ry. Co. of Texas, that he then stated he recalled the transaction, but did not think of it when he answered his depositions. This case is in itself an allustration of the wisdom of the rule above cited in perjury cases. Because the court refused to quash the indictment, the judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.