
    HAYS v. STATE.
    (No. 3428.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1915.)
    1. Pee juey <g=>25 — Indictment — Materiality of Testimony.
    An indictment, alleging that it was a material inquiry on a trial whether T. sold and delivered a pint of whisky to accused, and whether accused paid T. a dollar therefor, that accused was sworn as a witness, and testified that he did not remember whether or not he bought a pint of whisky from T., or whether T. delivered it to him, or whether he paid therefor, or whether T. sold and delivered whisky to him at another time, or whether he paid for that whisky, that such statements were material, whereas in truth and in fact accused did remember whether T. sold and delivered such whisky, and that he paid T. a dollar in each instance therefor, was defective, since while such testimony might become material, and the subject of perjury, under appropriate allegations, and if accused knew of the transaction about which he was testifying and refused to state the facts on the ground that he did not remember, when in fact he did remember, his testimony might be materially false, it was nqt material, under the allegations contained in the indictment, that accused’s memory was treacherous, or that he failed to remember the transactions about which inquiry was made.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. <§=25.]
    2. Perjury <§==>33 — Evidence — Weight and Sufficiency.
    On the trial of a person for testifying falsely that he did not remember whether he purchased whisky from another person, evidence held insufficient to support a conviction, under the rule that perjury must be proved by two credible witnesses, or one credible witness with strong corroborative circumstances.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. <§=33.]
    3. Criminal Law <§=784 — Instructions — Circumstantial Evidence.
    On the trial of a person for testifying falsely that he did not remember whether he purchased whisky from T., where there was nothing to show that he did remember, and nothing to show that T. ever sold him any whisky, except accused’s own statement before a justice of the peace prior to T.’s trial that he purchased whisky from T., the court should have charged on circumstantial evidence, as his statement before the justice was but a circumstance if admissible at all.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. <§=784J
    4. Criminal Law <@=8d0 — Instructions — Definition of Terms.
    On a trial for perjury, the court should have defined the words “willfully and deliberately.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. <®=800.]
    Appeal from District Court, Titus County; H. F. O’Neal, Judge.
    Judson Hays was convicted of perjury, and be appeals.
    Reversed.
    Rolston & Rolston, and T. C. Hutchings, all of Mt. Pleasant, for appellant. C. C. McDonald, Asst. Atty Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of perjury, his punishment being assessed at two years’ confinement in the penitentiary.

The indictment alleges that it was a material question and inquiry, in a case tried in the district court where Thompson was defendant and the state plaintiff, to know whether Thompson sold and delivered a pint of whisky to appellant, and whether appellant paid Thompson a dollar for it. There are several matters set out of the same nature, all looking to the supposed transaction between appellant and Thompson, wherein it was sought to prove appellant had bought whisky from Thompson. After stating the above, it is alleged appellant was sworn as a witness and testified he “did not remember whether or not” he bought a pint of whisky from Thompson on the 3d of May, 1913, and he “did not remember whether or not” Thompson delivered to him a pint of whisky at that date, and that he “did not remember whether or not” he paid Thompson a dollar for the pint of whisky, and he “did not remember whether or not” Thompson sold and delivered to him a pint of whisky at another date, and that he “did not remember whether or not” he (appellant) paid Thompson a dollar for that pint of whisky. Without repeating more of it, this is the substance of the alleged testimony. The traverse is, in substance, as follows: That said statements so made by the said Judson Hays were then and there material to the issue in said cause, whereas in truth and in fact he, the said Judson Hays, “did remember whether or not” Thompson sold and delivered to him two pints of whisky, one on the 3d of May and the other on the last Saturday in April, and that he paid Thompson a dollar in each instance for the whisky.

Motion was made to quash the indictment because the matters and things set out were not material. We think this contention should have been sustained. It was not material, under the allegations contained in the indictment, that appellant’s memory was treacherous, or that he failed to remember the transactions about which inquiry was made of him as a witness. Under appropriate allegations, testimony of this sort might become material and the subject of perjury. If the witness knew of the transaction about which he was testifying and refused to state the facts on the ground that he did not remember, when as a matter of fact he did remember, his testimony might be materially false. If the witness should answer truthfully to criminative facts, then it might become material. We are of the opinion, therefore, as alleged in the indictment, the matters stated were not material.

It is contended, also, that the evidence is not sufficient. The facts show that on the trial of Thompson, who was charged with pursuing the occupation of selling intoxicating liquors in Titus county without a license, appellant was used as a witness. The indictment against Thompson charged appellant bought whisky from Thompson on two occasions. Appellant was sworn as a witness in the Thompson Case, and, when asked about the transactions, said he did not remember whether he bought the whisky or not, or whether Thompson sold him the whisky or not. There seems to have been no question of the fact that he so testified. Each witness was asked in regard to appellant’s testimony, and his manner and demeanor on the stand, and each witness state# he did not know whether or not appellant remembered anything about the transaction. Each witness testified he knew nothing about it, but heard appellant testify that he did not remember whether or not he bought whisky from Thompson or that Thompson sold whisky to him. They confronted appellant on that trial, which testimony is also in this record, that he testified before the justice of the peace, in substance, that he did buy whisky from Thompson; but when confronted with that in the Thompson trial he said he did not remember whether he bought whisky from Thompson or not, that he was drunk at the time he testified before the justice of the peace. There is some evidence also to the effect that on the trial of Thompson appellant’s manner was of such a nature as to show he was irrational or drunk, that there was something unusual about him. This is, in substance, the case on the facts. We are of the opinion this testimony does not prove the case as alleged in the indictment. Perjury must be proved by two credible witnesses, or one credible witness with strong corroborative circumstances. The testimony is uncontroverted that he stated before the jury in the Thompson trial that he did not remember whether or not he bought whisky from Thompson. No witness here testifies that appellant did remember anything about it, and the main circumstance, if that be a circumstance, was the production of the testimony in this case that was used as impeaching testimony in the Thompson trial, to the effect that before the justice of the peace appellant stated he bought whis-ky from Thompson. Appellant did not plead guilty in this trial, but, on the contrary, he pleaded not guilty. If the testimony of appellant before the justice of the peace can be treated as testimony at all, it would be simply as a circumstance to show, at the time he testified before the justice of the peace, that he stated he had bought whisky from Thompson. It could only be a circumstance to show, if admissible for any purpose, that on the Thompson trial he ought to have recollected it, but it is not proof of the fact that he did; it is but a circumstance. It could not be used to convict Thompson, because it was only impeaching testimony of a state’s witness supposedly introduced on the theory that the state was surprised at 'appellant’s testimony in the Thompson trial. So we are of the opinion the testimony is not sufficient; that it does not meet the requirements of the statute.

The charge was criticized because of its failure to charge on circumstantial evidence. We have stated enough of the case already to show this exception was well taken. The fact that appellant stated before the justice of the peace that he had bought whisky from Thompson, and that Thompson had sold whis-ky to him, was but a circumstance, if admissible at all, to show on the trial of his perjury case that he might have recollected on the Thompson trial what he testified before the justice of the peace; but there is nothing in the record to show that he remembered1 it, and there is nothing in the record to show that Thompson ever sold any whisky to appellant, except that statement of appellant before the justice of the peace. A charge on circumstantial evidence should have been given.

Another error is assigned on the failure of the court to define the words “willfully and deliberately.” This was called to the attention of the court properly, and upon another trial those terms should be explained, and especially in view of this record. See Windon v. State, 56 Tex. Cr. R. 198, 119 S. W. 309.

The judgment is reversed, and in the judgment of the writer the prosecution ought to be dismissed. 
      <g=»For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     