
    KNIGHT v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Perjury (§ 26) — Indictment — Traverse of Affidavit.
    An indictment charging false swearing, in making an affidavit to procure a marriage license, was defective for alleging that the girl mentioned in the affidavit was not then and there 21 years of age, when the affidavit was averred to have merely stated that she was 18 years of age.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 90-94; Dec. Dig. § 26.]
    2. Perjury (§ 37) — Instructions.
    It was error for the instructions in a prosecution for false swearing not to define the terms “deliberately” and “willfully.”
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§134i-138; Dec. Dig. § 37.]
    3. Perjury (§ 37) — Instructions — Weight oe Evidence.
    In a prosecution for false swearing it is necessary that the jury be charged that the case must be proved by two witnesses, or by one witness and the requisite corroborative evidence.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 134-138; Dec. Dig. § 37.]
    4. Perjury (§ 37) — Instructions—Mistake.
    In a prosecution for falsely swearing, in an affidavit to procure a marriage license, that the woman was 18 years of age, accused testified that they did not have any conversation about procuring the license, but that the license clerk asked whom the license was for, and he said for himself; and in answer to a question whether he was 21 years of age said, “I look like it, don’t I?” and- also stated that he would not swear to the girl’s age, not knowing it, and was asked, “How old would you take her to be?” and he said, “I don’t know, 20 to 23 years of age,” and that the clerk made out the license and told him to sign his name, and that accused swore that the statement was true “to the best of his knowledge.” Held, that the evidence raised the issue of mistake in swearing as to the girl’s age so as to require an instruction thereon.
    [Ed. Note — For other cases, see Perjury, Cent. Dig. §§ 134-138; Dec. Dig. § 37.]
    5. Criminal Law (§ 770) — Instructions— Applicability to' Issues.
    An appropriate instruction should be given as to every material question raised by the evidence favorable to accused.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.j
    6. Indictment and Information (§ -171) — Evidence — Proof.
    The evidence should conform to and support the allegations of the indictment.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 636, 637, 549; Dee. Dig. § 171.]
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Isaac S. Knight was convicted of false swearing, and appeals.
    Reversed, and prosecution dismissed.
    I. D. Ferguson, of Denton, and W. F. Ramsey, of Austin, for appellant. H. R. Wilson,- Co. Atty., and F. M. Bottorfí, Asst. Co. Atty., both of Denton, and C. B. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No.-Series & Rep’r Indexes
    
   DAVIDSON, P. J.

The indictment charge» appellant with false swearing in that he deliberately, corruptly, and willfully, under the sanction of the oath administered by the county clerk of Denton county, made the following voluntary false statement and declaration and affidavit in writing. The instrument is as follows:

“I, I. S. Knight, do solemnly swear that I am 21 years of age, and that Miss Bessie Welborn is 18 years of age, and that there are no legal objections to our marriage. Isaac S. Knight.
“Sworn to and subscribed before me this the 21st day of Oct., A. D. 1912. Oscar T. Button, Clerk County Court, Denton County, Texas.”

The traverse is as follows: “Whereas, in truth and in fact the said Miss Bessie Wel-born was not then and there 21 years of age, and in truth and in fact there were then and there legal objections to the marriage of the said Isaac S. Knight and Miss Bessie Wel-born, which said false affidavit, so made by the said Isaac S. Knight, was not then and there required by law, nor made in the course of a judicial proceeding, yet the same then and there was nevertheless willfully and deliberately made, and was willfully and deliberately false, as the said Isaac S. Knight then and there well knew, against the peace and dignity of the state. O. O. Yeatts, Foreman of the Grand Jury.”

Several grounds were urged against the validity of this indictment. At least one of these objections is well taken without question. The affidavit alleges defendant swore the girl was of the age of 18 years, whereas the indictment alleges that she was not then and there 21 years of age. It would need no argument to sustain the proposition that whatever is sought to be charged as false in the affidavit should be traversed as shown by the face of the affidavit. That instrument alleged that the girl was 18 years of age, not that she was then and there 21 years of age. The affidavit alleges one age and the indictment traverses another age, and one not stated by the defendant, and one to which he did not swear. The accused must be prosecuted for the falsity of the affidavit, and not for something which was not contained in the afudavit and to which he did not swear. The indictment does not charge an offense in that the statement and the allegations in the traverse do not meet nor correspond, and the indictment seeks to charge him with swearing to a thing to which he did not swear. This renders the indictment vicious, and, therefore, it does not charge the offense of which appellant was guilty, if guilty. This must reverse and dismiss the prosecution. The indictment should also traverse the legal objections specifically by stating what they were.

Some of the objections urged to the charge were as to its contents and omissions. The charge nowhere defines the terms “deliberately” and “willfully.” Exception was taken to this in the trial court and is urged here as error. These objections were timely made and entitle appellant to a reversal. This charge should have been given. Windon v. State, 56 Tex. Cr. R. 198, 119 S. W. 309. That case cites the authorities, and it is unnecessary to cite other cases.

Exception was reserved to the court’s charge because it failed to instruct the jury that it was necessary, before a conviction could be secured, tnat the state’s case must be sustained by two witnesses, or one witness by the requisite corroborative evidence. This charge is necessary. Appellant urged this in the trial court, and is urging it here for reversal. His contention is well taken. Branch’s Crim. Law, § 657; Gartman v. State, 16 Tex. App. 215; Washington v. State, 22 Tex. App. 32, 3 S. W. 228; Smith v. State, 22 Tex. App. 200, 2 S. W. 542; Brookin v. State, 27 Tex. App. 701, 11 S. W. 645; Wilson v. State, 27 Tex. App. 50, 10 S. W. 749, 11 Am. St. Rep. 180; Miller v. State, 27 Tex. App. 498, 11 S. W. 485; Grandison v. State, 29 Tex. App. 186, 15 S. W. 174; Aguierre v. State, 31 Tex. Cr. R. 519, 21 S. W. 256. These are sufficient cases. In addition we cite the statute.

It is contended that the doctrine of inadvertence or mistake should have been charged. The evidence raising this issue is found in the defendant’s testimony. He says; “We did not have any conversation about procuring the license. When I went and applied for the license Mr. Button stated to me, ‘Who are these license for?’ and I said, ‘For myself.’ He said, ‘Are you 21 years old?’ And I said, T look like it, don’t I?’ He said, ‘Is she 18 years old?’ and I said, T wouldn’t swear to it, not knowing her age.;’ I didn’t want to swear to. something I didn’t know. He said, ‘How old would you take her to be?’ and I said, T don’t know; 20 to 23 years of age.’ After he made out the license he showed It to me, and said, ‘Sign your name,’ and ,1 signed it, and he said, ‘You solemnly swear this statement is true and correct?’ and I said', ‘To the best of my knowledge.’ That is the statement I made to him.” This raises the question, and the matter should have been given in charge to the jury. See Windon v. State, 56 Tex. Cr. R. 198, 119 S. W. 309. It is unnecessary to cite other authorities.

Wherever a question is raised favorable to a defendant, an appropriate charge should be given so that the jury may decide that issue.

The question of parlance was also raised. This arises out of me conflict in the indictment between the age set out in the affidavit and that alleged in the traverse. One alleges the age to be 18, the other over 21.

It is fundamental that the evidence should correspond with and support the allegations. Appellant did not swear the girl was 21 years of age, but did swear she was 18. She could have easily been 18 years of age and under 21. It is necessary to further discuss these matters.

For the errors indicated the judgment is reversed, and the prosecution is ordered dismissed, with the right of the state to hold appellant under proper affidavit if it desires further prosecution.  