McVicker v. State , 52 Tex. Crim. 508 ( 1908 )

Appellant was convicted of the offense of perjury and his punishment assessed at two years confinement in the State penitentiary.

The only question we deem necessary to pass upon in this case is the sufficiency of the indictment, and the evidence supporting the same. The indictment is very inartistically drawn and is defective in that the same does not show how or wherein the statement upon which perjury is predicated became material. This criticism also applies to the evidence in the case since it does not show how or wherein it was material to know whether or not Tom Finley came to appellant's house. We glean from the indictment before us that the effort of the district attorney was to predicate perjury upon the fact that appellant did talk to Tom Finley about a certain case that the grand jury were investigating against Tom Finley, on a certain night at appellant's house, and as we understand, the pleader was attempting to predicate perjury on the fact that appellant swore that he did not have a conversation with him at that time. If the grand jury was investigating a charge against Tom Finley for the seduction of Minnie Newman, and the fact that Tom Finley, prior to the time that appellant appeared before the grand jury, had gone and had a conversation with McVicker, the appellant, and said conversation, or fact of conversation, would go to discredit appellant's testimony in said Tom Finley's case, then it would be a material inquiry for the grand jury to know the truth thereof; and any false testimony given by appellant on the matter might, and would be material but the evidence does not clearly show this, and while it is not necessary for the indictment to show the materiality, under a long line of authorities of this court, we suggest, in view of the lack of certainty in the allegation, that a new indictment be found. The evidence does not show how or wherein the testimony was material and for this reason the judgment is reversed and the cause is dismissed.

Reversed and dismissed.