Freeman v. State

I do not concur with the view of the majority of the court, which holds that the State could not adduce testimony that was delivered during the trial to establish the materiality of the alleged false testimony. The question as to the materiality of the alleged false testimony is for the court; but this may become a mixed question of law and fact, and may properly be submitted to the jury; the court informing the jury that, if they find certain facts to be true, then the alleged false testimony became material. Jackson v. State, 15 Texas Crim. App., 579; Montgomery v. State (Texas Crip. App.), 40 S.W. Rep., 805. Ordinarily, the question of materiality is not complicated; but merely on introducing the indictment and the plea the materiality of the alleged false testimony becomes obvious. For instance, on a charge of murder A pleads not guilty; then any testimony tending to show self-defense would become material. But if the alleged false testimony bears not immediately on the issue, but upon some collateral issue, which in its turn becomes material as illustrating or bearing on the main issue, then the materiality of the testimony may become more complicated, and enough of the proceedings transpiring in the lower court should be shown in order to establish the materiality of the alleged false testimony to the issue then being tried. Mr. Bishop, in his Criminal Procedure, volume 2, section 935, uses this language: "The allegation of materiality must also be proved. It is not enough that the testimony was actually admitted, yet it suffices that the indictment sets out the facts unless the materiality judicially appears. When it does not, the course is to prove all or so much less than all of the pleadings and evidence brought forward at the former trial as will duly present the question. Whereupon the court, not the jury, will decide as of the law, whether or not what the defendant is shown to have testified to therein was material. Yet, practically, as fact is involved with the law, the question must generally be passed upon with the rest by the jury under instructions from the court." Bearing in mind that the sole question here is as to the materiality of the alleged false testimony, the fact then to be proved is, how it came to be material; and the solution of this question can be arrived at solely from the pleadings and evidence delivered on the trial, and bearing on that issue. Of course, only so much of the evidence as tends to prove the issue should be admitted. With these views, I can not concur in the majority opinion on the question discussed. I do not express an opinion as to the disposition of the case, as there may be other questions in the record not treated.