
    State of Mississippi v. John T. Booker.
    Criminal Law. Attempt. Subornation of perju/ry. Code 1892, §1246. Indictment. Materiality.
    
    An indictment for an attempt to suborn a witness to commit perjury, under Code 1892, § 1246, is demjirrable if it fail to show the materiality of the testimony corruptly sought.
    From the .circuit court of Tippah county.
    Hon. J. B. Boothe, Judge.
    Booker, the appellee, was indicted for an attempt to suborn a witness to commit perjury. Leaving off mere formalities, the indictment .was as follows:
    “John T. Booker, late of the county aforesaid, on the 30th day of June, 1903, in said county, unlawfully, willfully, feloniously, and corruptly, for a valuable consideration, to wit, money, did attempt to procure Albert Fryar to -commit willful and corrupt perjury as a witness in the bastardy case of Willie Cox v. John Wicker, which was to be tried after that time before S. W. Pegram, a justice of the peace of said county, before whom said cause was then pending, of which cause he had jurisdiction, and the said Albert Fryar having been summoned as a witness, and concerning which case the said Albert Fryar might by law be examined as a witness. The said John T. Booker did then and there offer to pay said Albert Fryar money if he would swear in said case that he (Fryar himself) had had sexual intercourse with her, the said Willie Cox, which testimony, if Jelivered by said Albert Fryar. in said trial, would have been false.”
    A demurrer was sustained to the indictment and the state appealed to the supreme court.
    
      J. N. Flowers, assistant attorney-general, for appellant..
    
      
      Leroy Kennedy, for appellee.
    The indictment is based on Code 1892, § 1246. There is no allegation of materiality and perjury cannot be predicated of immaterial matter. Jennings v. State, 7 So. Rep., 462.
    Whether Fryar ever, at any time, had sexual intercourse with the woman named in the indictment was immaterial. Anonymous, 37 Miss., 54.
   Calhoon, J.,

delivered the opinion of the court.

The indictment in this ease is bad in that it does not charge that the words of which an attempt at subornation of perjury is predicated were material to any issue, nor cure the omission by stating facts showing clearly that they were material. Jennings v. State (Miss.), 7 South., 462; State v. Silverberg, 78 Miss., 858; 29 South., 761. The demurrer to it was properly sustained.

Affirmed.  