Omitting formal portions, the charging part of the indictment is as follows: “Whereupon it then and there became and was a material inquiry before said judge and jury in the trial of said judicial proceeding whether the. said R. L. George, Jr., who was present when the assault, alleged to have been made upon H. C. Walker by Dan J ones, was made, stated to E. J. Ward, and in the presence of said E. J. Ward, on the morning following the commission of said assault, that the…
¶2
This case was decided at the Dallas term and comes before us on motion for rehearing. Appellant contends that the court committed an error in holding that the predicate assigned for the perjury was sufficient, the predicate for the perjury alleged in the indictment being in this wise: That one Dan Jones was on trial for assault to rob, and defendant R. L. George, whom it was claimed was present at the time of the robbery, was then and there introduced as a witness in behalf of the defendant, and the defendant proved' by him that the man who committed the assault was a small man; it being in that connection shown that Dan Jones, who was then on trial, was a large man. On cross-examination the State asked the witness if he did not state, at a time and place named, on the morning after the assaidt, to A. J. Ward and others, that the party who made the assault was a large man, and about the size of Henry Green; to which the witness
*649
.■answered “Ho.” How, it is claimed by appellant that this answer of the witness, on which the perjury in this case is assigned, was not a material matter in the trial of said Dan Jones; it being insisted that it was not in anywise calculated to influence the tribunal. We can not agree to this contention. Appellant swore to a very material fact in the Dan • Jones case when he testified that the party who made the assault to rob was a small man, and it was competent for the State to impeach him on this testimony. What he may have said to others in contravention of his testimony given on the trial as to the size of the party committing the assault was material. While his testimony remained before the jury unimpeached, it was very material on behalf of the defendant, as it served to influence the tribunal in his favor in that case. If, on the other hand, the State should be enabled to impeach him, the impeaching testimony was material, as it served the purpose of destroying his defense, and so was calculated to influence the tribunal in favor ■ of the State. When the witness answered that he had not made the statement to the parties inquired about that the party committing the assault was a large man, he stated a fact that was material to be inquired •about. If it remained uncontradicted, of course his testimony would be unimpaired; but, if the State should contradict him on this matter, it would serve to impair his testimony before the jury; and his testimony before the jury, as stated before, was upon a very material issue in the case. State v. Mooney, 65 Mo., 494; Williams v. State, 68 Ala., ■ 551. The motion for rehearing is overruled.
