
    MUSICK v. STATE.
    (No. 8670.)
    (Court of Criminal Appeals of Texas.
    May 6, 1925.)
    1. Criminal law <&wkey;448( 16) — Permitting witness to testify that time defendant had resided in county previous to filing divorce suit was material issue held erroneous.
    In prosecution for perjury committed in divorce suit between accused and his wife, admitting testimony of judge that question as to how long defendant had resided in county previous to filing suit was material issue therein was., error, it being a question of law.
    2. Criminal law &wkey;>448(!6) — Admitting testimony that whether plaintiff in divorce suit knew address - or whereabouts of defendant was material issue held error.
    In prosecution for perjury committed in suit for divorce between accused and wife, admitting testimony of judge that it was material issue in divorce case whether plaintiff knew address or whereabouts of defendant was error, it being a question of law.,
    3. Criminal law <&wkey;448(16) — Permitting judge to testify that he had jurisdiction of divorce case held error.
    In prosecution for perjury committed . in divorce suit between accused and wife, permitting judge to testify, over objection, that he had jurisdiction of case was error, such being a question of law.
    4. Criminal law <&wkey;4l9, 420(1) — Statement of facts in divorce suit, made out of presence of accused, and without his knowledge, held inadmissible as original evidence.
    In prosecution for perjury committed in divorce suit between accused and his wife, statement of facts in divorce case, made out of accused’s presence and without his knowledge, was inadmissible as original evidence, and on retrial should be limited to purpose of impeaching witness who signed such statement.
    
      5. Criminal law <&wkey;519(3) — Admitting evidence of statement of accused to former wife after arrest for perjury held error.
    In prosecution for perjury committed in divorce suit between accused and wife, admitting testimony of accused’s former wife that accused, after arrest for perjury, told her that anything she said was the truth, and if she had a mind to send him to the penitentiary he would have to go, was error.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    , V. V. Musiek was convicted of perjury, and he appeals.
    Reversed and remanded.
    Harry M. Myers, of Fort Worth, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Tarrant county- for the offense of perjury, and his punishment assessed at confinement in the penitentiary for a term of three years.

This prosecution grew out of the testimony given by the appellant in a suit for divorce between himself and his wife, Grace Musiek, Which was heard in the Sixty-Seventh district court of Tarrant county, over which court Judge Ben Terrell presided.

Appellant, by bill of exception No. 4, complains of the action of the court in permitting the state to prove by Judge Terrell that the question “as to how long the defendant had resided in Tarrant county previously to the filing of the suit” was a material issue in the divorce case. The objection to this testimony was that the question of materiality of any testimony given in the trial of the divorce ease is a question of law, and could not be proved by the opinion of a witness. This assignment must be sustained. Mr. Branch correctly states the rule covering this question as follows:

“The mere opinion of a witness or any other person is not admissible either to pro've that the statement alleged to be false is material or immaterial.” Washington v. State, 23 Tex. App. 337, 5 S. W. 119; Foster v. State, 32 Tex. Cr. R. 41, 22 S. W. 21.

By bills of exceptions 18 and 19 appellant raises practically the same objection to the testimony of Judge Terrell to the effect that he was permitted to testify that it was a material issue in the divorce case as to whether or not the plaintiff knew the address j or whereabouts of the defendant; and by bill 19 it is shown that the witness was permitted •to testify over the appellant’s objection that the witness had jurisdiction of the case. These were purely questions of law, and, under the authorities cited above, the testimony was clearly inadmissible.

By bill of exception No. 46, objection was made to the introduction of the agreed statement of facts in the divorce case. The bill shows that this statement of facts was signed by appellant’s attorney in the divorce case and by the defendant’s attorney in the divorce case, and was made up and signed when the appellant was not present, and the bill further shows that 'the attorney who signed same refused to say that it was an accurate statement of the appellant’s testimony in that case. Regardless of this, however, the fact that it was made out of the presence and without his knowledge would make it inadmissible as original evidence against the appellant. We perceive that it was admitted for the purpose of impeaching ,one of appellant’s witnesses in this case, who had signed said statement of facts, and it was admissible for this purpose, but in view of another trial, we suggedt that the court •limit this testimony to the purposes for which it was admissible, in the event it should be admitted on another trial.

By bills of exceptions Nos. 47 and 49, appellant complains of the action of the court in permitting the state to prove by Grace Musiek, the former wife of appellant, certain statements made by him to her while he was under arrest. These bills both dearly show that appellant was under arrest at the time the statements were made that his former wife testified about, and the statements were highly important testimony, and should not have been admitted. As bearing on the damaging nature of this testimony, this witness was permitted to say that the appellant told her in this conversation that .anything she says is the truth, and if she-is ;a mind to send him to the penitentiary, he would have to take it. This statement was ■made in August after the alleged perjury was committed in the preceding June. Section 60, p. 33, Branch’s Ann. Pen. Code, and many authorities there cited.

For the errors above discussed, the judgment of the trial -court is hereby reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
      
      
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