Johnson v. State , 84 Tex. Crim. 243 ( 1918 )

PRENDERGAST, Judge.

—Appellant was convicted of perjury. There were some motions to quash the indictment which were overruled. It is unnecessary to state them. There was no merit in any of them. However, after the conviction appellant further attacked the indictment on the ground that it alleged that on February 6, 1918, appellant appeared before the grand jury, was duly sworn, etc., and that he falsely testified that on or about' March. 3, 1918, that one John Parker did not sell to him a half pint of intoxicating liquor on March 3, 1918.

From this it will he seen that the indictment alleges that appellant appeared before the grand jury on February 6, 1918, and swore falsely to something that did not occur until March 3rd subsequently. The trial judge held that the alleged date of February 6th as the one he appeared before the grand jury and swore falsely, etc., was a clerical error and that the true date was March 6th, and he held that this was a matter of form and not of substance."

In this we think the trial judge was clearly in error. In our opinion it was a matter of -substance and not of form and could not have been amended nor could it be held to be immaterial.

The result is that the judgment must be reversed and the cause dismissed, which is ordered.

Dismissed.