
    SCOTT v. STATE.
    (No. 3230.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1914.)
    Pee jury (§ 25) — Indictment—Sufficiency.
    An indictment charging that it became a material inquiry before the grand jury whether defendant played any game on which money was bet or saw any such game played, and that he testified that he had not played or seen any such game played, and stating in the traverse that he knew that he had played three different games with certain parties named but not shown to have been inquired about before the grand jury, was insufficient'for failure to allege that the testimony given by defendant before the grand jury was material to the inquiry.
    TEd. Note. — For other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. § 25.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Walter Scott was convicted of perjury, and appeals.
    Reversed and dismissed.
    See, also, 160 S. W. 960.
    H. E. Trippet, of Hico, and Eidson & Eid-son, of Hamilton, for appellant C. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Deo, Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

Appellant was convicted of perjury; • bis punishment being assessed at two years’ confinement in the penitentiary.

The indictment, omitting formal parts, alleges:

“It then and there became and was a material inquiry before said grand jury and necessary to the due administration of the criminal laws of the state of Texas and the ends of public justice whether he, the said Walter Scott,” has “theretofore at any time within the last two years next preceding the said 2d day of September, 1912, in Hamilton county, Tex., or within 400 yards of the boundary line between Hamilton county, Tex., and Erath county, Tex., played at any game played with dice upon which money was bet, and whether he, the said Walter Scott, had seen any game played with dice upon which money was bet in Hamilton county, Tex., or within 400 yards of the boundary line between Hamilton county, Tex., and Erath county, Tex.,” etc.

Then follows the statement that appellant as a witness before the grand jury did willfully, deliberately, etc., testify as follows, to wit:

“I have been engaged in no gambling of any character either with cards, dice, or betting on the ball game. I threw dice with Bill Cole in the_ buggy, but we did not bet on the throwing. This was in Hamilton county. I played dice with Acquilla Simmons on the Clairette road about six weeks ago, but we did not bet on the game. I played dice with one of Mollie Bailey’s showmen some time avo, but did not bet on that game. These are the only times I have played dice since I returned to this county about 18 months ago.”

Meaning thereby, etc., that he had not played at any game of dice upon which money was bet in Hamilton county, or within 400 yards of the boundary line between Hamilton county and Erath county, Tex., since his return to the county. Then follows the traverse wherein it is alleged:

“In truth and in fact as he, the said Walter Scott, then and there well knew, he, the said Walter Scott, had played and did in Hamilton county, Tex., or within 400 yards of the boundary line between Hamilton county, Tex., and Erath county, Tex., and on or about the 1st day of May, 1912, play at a game played with dice, commonly called craps, and especially had he, the said Walter Scott, played at a game played with dice commonly called craps and upon which money was bet with Billie Cole, Billy Rhoades, Vernon Smith, and other persons in Hamilton county, Tex., or within 400 yards of the boundary line of Hamilton county, Tex., and Erath county, Tex., within two years next preceding the said 2d day of September, 1912, to wit, on or about the 1st day of May, 1912; and, whereas, in truth and in fact, as he, the said Walter Scott, then and there well knew, he, the said Walter Scott, had played and did at another and a different game played with dice commonly called craps in Hamilton county, Tex., which said game was played on or about the 1st day of August, 1912, at the compress in the town of Hico in Hamilton county, Tex., with one Vernon Smith, and also money was bet on that game. He had also played at another and a different game played with dice commonly called craps with one Henry Rodgers and Tom Wood in a box car,” etc.

Motion was made to quash this indictment on several grounds. We are of the opinion this indictment is totally insufficient under the authorities. It will be noticed that the allegation was that it became a material inquiry that appellant played at a game on which money was bet. This does not allege directly or even indirectly that the alleged false statement was material to the issue. Buller v. State, 33 Tex. Cr. R. 553, 28 S. W. 465; McMurtry v. State, 38 Tex. Cr. R. 521, 43 S. W. 1010; Miller v. State, 43 Tex. Cr. R. 368, 65 S. W. 908; Rosebud v. State, 50 Tex. Cr. R. 475, 98 S. W. 858; Morris v. State, 47 Tex. Cr. R. 423, 83 S. W. 1126; and for collation of authorities see Branch’s Criminal Law, § 650. It could hardly be a material question whether defendant played at a game where money was bet or not. If it was a material question that he did or did not bet, he being a witness before the grand jury, then the allegation of materiality ought to have alleged directly that he did bet, and not whether he did or did not. It was not material to know whether he did or did not. It is material to know whether the game was played and money bet on it. Nor could it be material, as we understand that appellant did or did not bet on the game. He was a witness before the grand jury, and upon his testimony the grand jury may indict other parties for gambling, but not the defendant, because the statute, where a party to the game testifies, immunes that party from punishment. Nor was it material, as we understand the decisions, that appellant may or may not have seen parties play. The material question was whether the parties played, and not whether defendant saw them play. If it was material and necessary to allege that they did in' fact play, then it should have been alleged that he had seen them play. But as we understand the rule in Texas, the grand jury must inquire about offenses, and it was not an offense for defendant to see other parties play. It is an offense that the gaming law was violated, and, if appellant saw the other parties play, the question to be inquired of was as to whether or not these parties played, and the defendant would know whether they played or not. This rule was laid down in Gallegos v. State, 50 Tex. Cr. R. 192, 95 S. W. 123. The material questions alleged in the indictment were of the most general nature, confining itself to the following propositions: Whether the defendant had played at a game on which money was bet, and whether he had seen other parties play that character of game within two years prior to the 2d day of September. This is very general, to say the least of it, as to date, and entirely too general as to games, places, and parties. This indictment, we think, is insufficient because it does not allege this testimony given by appellant was material. The only materiality alleged is whether he played himself or had seen others play. Under the cases cited, this is not sufficient allegation of materiality. This identical question was decided in the McMurtry Case, supra. Quoting from that decision, we find this language:

“In addition to the objections heretofore stated with regard to the indictment, appellant claims that said indictment is defective because it does not allege that the testimony of appellant upon the points in issue was material; and he insists that the allegation in the indictment ‘that it became and was a material matter of inquiry before said grand jury whether, at the time and place laid in the indictment, appellant played at a game with cards,’ etc., is not sufficient; that the indictment should have further alleged that the testimony given by appellant on said issues was material. This contention seems to be correct. See Buller v. State, 33 Tex. Cr. R. 551 [28 S. W. 465]; Weaver v. State, 34 Tex. Cr. R, 554 [31 S. W. 400].”

Going to the traverse we find that it is alleged, as a matter of fact, that appellant knew that he had played at least three different games with the certain parties named in the traverse. The traverse covers a wider field than the questions asked or the testimony given by appellant. The material questions were very general, to wit, whether appellant had played at any game with dice on which money was bet, or had seen other parties play games at which money was bet. 1-Iis testimony was that he had been engaged in no gambling with cards, dice, or betting on ball games, admitting that he threw dice with Cole and played with Simmons and one of Mollie Bailey’s showmen. These were the matters about which he testified before the grand jury. The grand jury, so far as the indictment is concerned, never asked him about the games with the other named parties set out in the traverse. Of course, in order to hold a citizen to answer a charge of perjury, the facts upon which the state relies as being inquired about before the grand jury must have been inquired about before that body and called to the attention of the witness so- he may answer. There is nothing in the indictment indicating that he was asked about games played with parties mentioned in the traverse, and the traverse does not cover or refer to the instances about which he testified before the grand jury. He testified he played with certain parties, but did not bet. In order to make this indictment good, they should have traversed matters, about which he testified before the grand jury as set out in the indictment. The material inquiry alleged was whether or not he had played at a game where money was bet or had seen such games. He testified he played with certain parties but had not bet. The traverse covers an entirely different transaction and has no reference to the testimony before the grand jury.

This indictment is so fatally defective in so many ways we deem it unnecessary to discuss it further.

The judgment is reversed, and the prosecution is ordered dismissed.

PRENDERGAST, P. J.

In my opinion, the indictment herein is fatally, defective in these particulars only:

(1) Wherein it alleges it was a material inquiry, etc., whether appellant within two. years before September 22, 1912, “in Hamilton county or within 400 yards of the line between Hamilton county and Erath county played,” etc., this should have been “in Hamilton county and within 400 yards,” etc. And wherever in this connection the disjunctive “or” is used, the conjunctive “and” should have been used. The rule in Byrd v. State, 162 S. W. 362, does not apply. However, proof of either in Hamilton county, or within 400 yards of the line between said counties, would have been sufficient; it would not be necessary to prove both.

(2) No allegation avers that appellant bet-in any of the games he played, nor does any allegation aver wlio bet in any of tbe games be saw played. This should bave been averred. Or if tbe games be played in bimself alone were relied upon it should bave averred be bet thereon. If not those, but tbe games be saw played alone, were relied on, then it should aver who bet therein.

I think tbe indictment is not defective in any other particular.

Ño direct averment was made that tbe alleged false testimony upon which the perjury was based “was material to the issue”; but, taking all the allegations together, I think they show what is alleged he testified was material to the issue. See the opinion in Charley Bell v. State, 171 S. W. 239, this day delivered. However, I think it would always be better to make the specific allegation that what he testified was material to the issue.

On these grounds alone I concur in Judge DAVIDSON’S opinion reversing and dismissing this cause.

HARPER, J.

I concur in the reversal and dismissal of the case, because the indictment fails to allege that the testimony given was material to the inquiry, and I have doubts that the allegations are sufficient to supply this omission in the allegations. However, it is no offense to play at dice; it is only an offense to “bet” at a game played with dice. There is no allegation that his statement that he played at games of dice, but had not bet thereon was not true; there should have been, to have rendered the indictment valid, not only an allegation that he played at a game of dice, but that he bet on said same game. The “betting” in the game of dice, and not the mere playing, would be, the gra-va.men of the offense.

The other holdings in the opinion I express no opinion on.  