F. Martinez v. The State, 7 Tex. Ct. App. 394

White, P. J. It appears that the matter assigned as perjury grew out of the testimony of the appellant in a trial in the District Court of Uvalde County, wherein one John Hannahan was being prosecuted for the theft of a steer. The matter assigned as perjury is thus stated in the indictment, after the usual formal averments, viz.: “Whereupon it then and there became material, upon the trial of said issue, whether the said John Hannahan or one Frank West killed the steer charged in the indictment to have been stolen by the said John Hannahan, and the said F.

Martinez, being so sworu as aforesaid, wickedly contriving and intend.ing to cause the said John Hannahan unjustly to be acquitted of said felony, did then and there knowingly, falsely, corruptly, wilfully, and deliberately depose and give in evidence to the jurors of the jury then and there duly accepted and sworn between the State of Texas and the said John Hannahan, before the said Thomas M. Paschal, judge as aforesaid, that he, the said F.

Martinez, saw the said Frank West kill said steer, about four months ago [meaning from 16th October, 1879] ; that he * * * was positive it was not more than four months ago. * * * When, in truth and in feet, the said Frank West did not kill said steer at the time and place as alleged by the said F. Martinez ; all of which statements, made under oath as aforesaid, by the said F. Martinez, he, the said F. Martinez, then and there knew to be wilfully and deliberately false,” etc.

Now, a material matter in issue, it will be observed, accordingto the allegation, was “whether Hannahan or West killed the steer.” The perjury i it is charged, consisted in the witness stating that he saw West kill the steer about four months before, and this statement is negatived by the prosecution with the allegation, “ When, in truth and in fact, the said Frank West did not kill said steer at the time and place alleged.” As stated in the indictment, the allegations are insufficient to support an assignment for perjury.

In the prosecution of Hannahan, the State was not bound to prove a particular time and place, provided the proof showed the time of the theft to be anterior to the filina: of the indictment, and at a period not so remote as to be barred by limitation. “Four months,” or the time stated by the witness, became then immaterial, and does not settle the material issue whether West or Hannahan killed the steer ; for whilst it might not have been true that West killed him just “four months ago,” it might nevertheless have been true that West did kill him within four months, or prior to that time within the period of limitation.

There is, then, no inconsistency, in contemplation of law, between the statement of the witness and the fact that West did kill the animal, and that Hannahan was innocent of the crime. It follows, then, that the time fixed by the witness was wholly immaterial in law to the issue being tried. The pleader does not negative the fact that West killed the steer, but only the fact that he killed it “ at the time and place as alleged by the said Martinez.” On the face of the indictment the matter assigned as perjury is not made to appear material, nor is it material.

This is necessary to the sufficiency and validity of an indictment for perjury. Smith v. The State, 1 Texas Ct. App. 620. Our statute expressly provides that“ the statement of any circumstance wholly immaterial to the matter in respect to which the declaration is made is not perjury.” Rev. Penal Code, art. 193. Defendant’s motion in arrest of judgment should have been' sustained. Reversed and remanded.