Pyles v. State ( 1904 )

BROOKS, Judge.

This is a conviction for perjury, two years being fixed as the penalty. The bill of indictment charges that appellant was held in the corporation court of the city of Weatherford for unlawfully playing at a game with cards, in said county and city, not at a private residence occupied by a family; and that appellant did then and there falsely, wilfully and deliberately testify that he did not see a game played with cards, not at a private residence occupied by a family, on the 26th day of November, 1903, and in the woods west of and near the town of Weatherford in said county; and further, that he had not played in any such game with cards, on the 27th day of November, 1903, in said county, with certain persons, naming them. Appellant made a motion to quash the indictment, because (1) it does not charge any offense against the penal laws of this State; (2) because it does not allege facts showing that the corporation court of the city of Weatherford had jurisdiction of the cause in which the alleged false testimony is claimed to have been given; (3) because the indictment does not allege that the game inquired about was played within the corporate limits of the city of Weather-ford; and, (4) that it does not allege the facts which show any issue was joined about which said testimony was given, and shows that the issue was joined concerning a place west of and near the city of Weatherford. In Davidson v. State, 22 Texas Crim. App., 372, it is laid down that the rule is, “That a party not only commits perjury by swearing falsely and corruptly as to the fact which is immediately in issue, but also by swearing falsely and corruptly as to material circumstances tending to prove or disprove such fact; and this without reference to the question whether such fact does or does not exist. It is as much perjury to establish the truth by false testimony as to maintain a falsehood by such testimony.” “If the statement tend even circumstantially to the proof of the issue, it will be deemed material. (2 Arch. Crim. Prac. & Plead., 6 ed., p. 1727.) ‘Testimony tending to affect the verdict of the jury, or extenuating or increasing the damage, and thus influencing the judgment of the court, is material. It is not necessary that the testimony should of itself be sufficient to sustain the issue in the case in which the witness is called, or that it should change the mode of punishment if in a criminal case. If it is pertinent to the issue, it is sufficient.’ (King v. Rhodes, 2 Ld. Raymond, 887.) ‘In the case of the State v. Hathaway (2 Nott and McCord, 118) it.was said that to constitute perjury it was not necessary that the particular fact sworn to should be immediately material to the issue, but it must have such a direct and immediate connection with a material fact as to give weight to the testimony on that point.’” Applying the rule above quoted we hold that the indictment is sufficient. It is only necessary to allege the facts upon which perjury is predicated, and then show by the evidence the materiality of said facts. Hence the motion to quash the indictment is not well taken. However, applying the above rule to the facts, we hold that the same is not sufficient to show the materiality of the false allegation contained in the indictment, because the evidence does not show that the false statement was a material inquiry in a court of" competent jurisdiction. The corporation court of Weatherford had no jurisdiction to try any offense outside of its limits, and so far as the evidence herein shows it was immaterial whether appellant played cards outside the city limits. We do not wish to be understood as holding that this testimony could not, under some circumstances, become material. For instance, if A be on trial in the corporation court for unlawfully playing cards, and B testifies that a certain game was unlawfully played at a certain place in said city, but could not state the dató of such playing except circumstantially, to wit: that on the same day B saw A playing, he also saw A and C playing outside the corporation, then the date of the playing outside the corporate limits would become material in order to prove the offense of playing inside the corporate limits, where the statute of limitations was an issue. In other words, we hold that in order to make the testimony here the proper predicate for perjury it must be a material inquiry in the court then trying the case. If the playing outside the corporate limits was material to prove a playing inside the corporate limits, then the facts necessary to make it material should be introduced as evidence. The evidence here does not disclose any materiality. It is a self-evident proposition that facts abstractly considered might be immaterial, but when stated in conjunction with and in relation to other facts might render the material facts very potent. It is not necessary to amplify illustrations to demonstrate this. But we hold that the evidence is totally insufficient, in that the same does not show that the false statement was a material inquiry in the prosecution then pending in the corporation court of the city of Weatherford.

The judgment is accordingly reversed and the cause remanded.

Reversed and remanded.