Appellant was convicted of perjury, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.
The only question to which our attention has been directed, that deserves consideration, is an alleged variance between the proof offered as constituting perjury, and the allegations in the indictment; that is, as we understand the contention is, that there was affirmative testimony *Page 135 in the record raising the issue as to time and place when the alleged perjury should have been committed. In our opinion a careful perusal of the record fails to disclose that there was any such affirmative proof. The State predicated the perjury on appellant's testimony delivered in the previous trial of one Tyler, as to a conversation between Cora Mallard (prosecutrix in that case) and John Tyler, at a party at Sol Mallard's in January, 1902. The State alleged that appellant testified on said trial, that a certain conversation occurred at that time and place, between Cora Mallard and John Tyler, to wit: that appellant on that occasion should have heard John Tyler say to Cora Mallard: "If you are going to be my woman you must let other men alone; and that she replied: `I am not having anything to do with other men; I am your woman.'" The State alleged the falsity of this conversation and predicated a charge of perjury thereon; and, as we understand this record, proved the State's case as laid by a number of witnesses. Appellant contends that by two witnesses, an issue was raised as to the time and place when this conversation should have occurred. By John Tyler he proved that appellant testified to the conversation in substance. He then says that he (Tyler) had such a conversation with Cora Mallard, but he could not tell where, or when it was that the conversation happened; it might have been at Sol Mallard's or it might have been at Henry Mallard's. Appellant's counsel, B.B. Perkins, Esq., testified, in substance, that he had some difficulty in getting appellant in the trial of Tyler, to state where the conversation occurred; that objection was raised by Mr. Imboden to his testifying, which objection involved time and place; "that he then asked witness if it occurred in January, and he said he thought so. He then asked, if it was last January, and he said no, sir; that he had the smallpox last January and did not go anywhere. He then asked him if it was the January before, and he said he thought it was; that he knew it was not last January, for he had the smallpox then and did not go anywhere, and it must have been the January before." The most that can be said of this testimony is, that the witnesses were not definite as to when it occurred; they not only failed to contravene the State's case as to time and place when said conversation should have occurred, but they appear to corroborate the State's case as to time and place. Before the court could be required to charge upon a theory, there must be some evidence pertinently raising that theory. We do not believe the record does so here: consequently appellant's contention is not well taken. There being no error in the record, the judgment is affirmed.
Affirmed.
ON REARING, DECEMBER 20, 1904.