
    HIGHSAW v. STATE.
    (No. 6424.)
    (Court of Criminal Appeals of Texas.
    Oct. 26, 1921.)
    1. Perjury @=>25(3) — Indictment held insufficient to charge materiality of false testimony.
    An indictment for perjury charging that the matters concerning which defendant testified became a material inquiry before the grand jury is insufficient to charge the materiality of alleged false testimony relative thereto.
    2. Grand jury @=>3 — Indictment returned by grand jury of 14 men heid void.
    Under Const, art. 6, § 13, requiring that grand and petit juries be composed of 12 .men, an indictment returned by a grand jury of 14 men is void.
    Appeal from District Court, Knox County; J. H. Milam, Judge.
    Paul Highsaw was convicted of perjury, and he appeals.
    Reversed and prosecution ordered dismissed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for perjury. The judgment must be reversed and the prosecution dismissed because the indictment is wanting in an essential requisite, in that there is no sufficient averment charging the materiality of the alleged false testimony. The indictment is not in any material sense different from that before the court in the case of Bell v. State, 75 Tex. Cr. R. 401, 171 S. W. 239, and Scott v. State, 75 Tex. Cr. R. 396, 171 S. W. 243.

The motion to quash the indictment was overruled. As we understand the record, it was shown that the grand jury was composed of 14 persons. In the Constitution it is said:

“Grand and petit juries in the district courts shall be composed of twelve men; but nine members of a grand jury shall be a quorum to transact business and present bills.” Article 5, §13.

A grand jury otherwise composed has been uniformly declared by this court to be void. Lott v. State, 18 Tex. App. 627; Ogle v. State, 43 Tex. Cr. R. 219, 63 S. W. 1009, 96 Am. St. Rep. 860; Harris’ Texas Constitution, p. 435. If the indictment against the appellant was returned by a grand jury composed of more than 12 men (and such we understand to be a fact as disclosed by the record), it is void. Ex parte Reynolds, 35 Tex. Cr. R. 437, 34 S. W. 420, 60 Am. St. Rep. 54.

The judgment is reversed, and the prosecution ordered dismissed.  