
    JONES v. STATE.
    (No. 3449.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1915.
    On Motion for Rehearing, March 31, 1915.)
    1. Peejury <&wkey;ll — -Materiality op Testimony-Violation of Liquok Law — Possession of Liquok.
    In a prosecution for perjury, where a witness had testified falsely, before the grand jury investigating illegal sales of liquor by a third person, that he had not secured any liquor from such person, the possession of liquors by the accused always being material in prosecutions for violation of a liquor law, such testimony was material and supported the conviction of perjury.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 38-54; Dec. Dig. <&wkey;>ll.]
    2. Perjury <&wkey;36 — Materiality of Testimony-Question for Court.
    In a prosecution for perjury, the question whether the testimony of the defendant was material to an inquiry before the grand jury was for the court.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. § 133; Dec. Dig. <&wkey;>36J
    3. Perjury <&wkey;>33 — Finding—Sufficiency of Evidence.
    In a prosecution for perjury, evidence that the defendant had testified falsely before the grand jury investigating illegal sales of liquor held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dee. Dig. &wkey;>33.]
    4. Criminal Law <&wkey;595, 917 — Trial—Continuance — Illness of Witness.
    In a prosecution for perjury, based on alleged false testimony given before the grand jury investigating illegal sales of liquor by S. to C., where the defendant applied for a continuance, stating in his application that witnesses for the prosecution would swear that they saw C. buy whisky from S., there being no testimony in fact from any source to that effect, and where, in his motion for new trial, he attached an affidavit of C. stating that she would testify that, “I did not buy any whisky from1 S., nor did I ever see him sell any intoxicating liquors to any one,” it being apparent that the testimony was immaterial, the falsity of the defendant’s testimony having to do with whether he himself secured any liquor from S., and could have affected no issue in the case, denial of motion for a continuance and for new trial, made on the ground of C.’s inability to testify through illness, was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327, 2161, 2162; Dec. Dig. &wkey;595, 917.]
    
      5. CRIMINAL I/aw <&wkey;42 — Witness for State — Immunity Promise — Perjury Before Grand Jury.
    A district attorney has no power or authority to make an agreement not to prosecute a witness before the grand jury for perjury committed before such body; the agreement being contrary to public policy and void.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 45-48; Dec. Dig. <S&wkey;42.]
    6. Witnesses <&wkey;248 — Nonresponsive An-
    S WER— EXCLUSIO N.
    That an answer is not responsive to the question is not ground for exclusion, if it is competent evidence in the case.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 861-863; Dec. Dig. &wkey;248.]
    7. Criminal Law <&wkey;485 — Opinion Evidence-Qualification of Witness.
    A witness who shows that he knows nothing about the situation cannot give his opinion in response to a hypothetical question not founded on the testimony in the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1073, 1074; Dec. Dig. &wkey;> 485.]
    8. Criminal Law <§=^406 — Witnesses &wkey;>380 —Contradiction of Accused — Admissions.
    In a prosecution for perjury, committed before a grand jury investigating illegal sales of liquor, the evidence showing that, while defendant stated that he had received no liquor from one S., two sheriffs looking over a partition had seen S. hand him a pint, evidence that witness had talked with defendant and another negro, and that, although he did not know which one had made the remark or the exact words of it, nevertheless something had been said to the effect that deputy sheriffs, through a hole in a certain partition, could have seen the transfer of liquor, and that there was no use in swearing to a lie, was admissible in evidence to impeach defendant’s testimony and as an implied admission.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dee. Dig. &wkey;>406; Witnesses, Cent. Dig. §§ 1210-1219; Dee. Dig. &wkey;380.]
    9. Criminal Law &wkey;>784 — Trial—Charge on Circumstantial Evidence.
    In a prosecution for perjury alleged to have been committed before the grand jury investigating illegal sales of liquor, where the falsity of defendant’s testimony was shown by the direct testimony of two deputy sheriffs, the failure of the court to charge on circumstantial evidence was not error; since it is only necessary to give such charge where the testimony to establish the accused’s guilt is wholly circumstantial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. &wkey;5784.]
    On Motion for Rehearing.
    10. Perjury &wkey;>29 — Materiality of Testimony-Proof.
    In a prosecution for perjury, not only the indictment must allege that defendant’s testimony was on a material point, but proof must be made to that effect.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 97-106; Dee. Dig. <&wkey;>29.]
    11. Perjury <&wkey;33 — Materiality of Testimony-Sufficiency of Evidence.
    In a prosecution for perjury, evidence held to show that false testimony of accused before grand jury investigating illegal sales of liquor was on a material point.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. &wkey;33.J
    12.Criminal Law <&wkey;llll — Bill of Exceptions — Allegation of Testimony — Approval by Court — Effect.
    In a prosecution for perjury before a grand jury investigating illegal sales of liquor, where a witness gave no such testimony as was claimed in defendant’s motion to strike it out, the court, in approving the bill of exceptions to his overruling of the motion to strike out such testimony, by merely approving the bill, did not thereby certify the contents of the witness’ alleged testimony so that it had to be taken as stated on appeal.
    [Ed. Note. — For other cases,' see Criminal Law,]Cent. Dig. §§ 2894-2896; Dee. Dig. <&wkey;>
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Houston Jones was convicted of crime, and he appeals.
    Affirmed.
    Lattimore & Hutchison and Sturgeon & Ownby, all of Paris, for appellant. R. T. Lipscomb, Dist. Atty., of Bonham, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of perjury, and assessed the lowest punishment.

The alleged false testimony was given before the grand jury on or about October 10, 1913. The indictment followed the statute and the standard forms therefor which have many times been held sufficient. It alleges that appellant appeared before the duly organized grand jury and was sworn by the foreman thereof as required by law. Whereupon it then and there became and was a material' inquiry before said grand jury, and necessary for the due administration of the criminal laws of the state of Texas, in Lamar county, and the ends of public justice, whether Lee Shoulders, about September 20, 1913, in said county, engaged in, and pursued the occupation and business of selling intoxicating liquors in violation of law, and, while engaged in1 and pursuing said occupation and business, made more than at least two sales of such liquor to Dollie • Carter about said date in violation of said law; and properly averred that the liquor prohibition law was then and theretofore in force in said county; that on or about October 10, 1913, appellant did deliberately, willfully, and corruptly testify and say, in substance and effect, that Lee Shoulders did not have in his possession and did not deliver to him (the said Houston Jones) intoxicating liquors on or about September 20, 1913, id said county. The indictment then further properly alleges that appellant then well knew said Shoulders did have in his possession and did deliver to him intoxicating liquors at said time, and said statement so made by him was. deliberately and willfully made, and was deliberately and willfully false, as appellant then and there well knew, and that it was a material inquiry before said grand jury whether said Shoulders, in said county, on or about said date, had in Ms possession intoxicating liquors and delivered the same to appellant.

By motion to quash said indictment, and otherwise, appellant contends that the alleged false testimony by him was wholly immaterial, and could not be the basis of perjury; that in the grand jury’s investigation of whether Shoulders was engaged in or pursued the business of selling intoxicating liquors in said prohibition territory, it could not be a material inquiry of whether he, at that time, had such liquors in his possession or delivered any such to appellant. It is unnecessary to state his other contentions, for they all hinge around the question, as stated above.

Of course, if said testimony was wholly immaterial, it could not be made the basis of perjury, for the statute expressly so enacts. P. 0. art. 809.

There can be no question but that it was the- duty of the grand jury to investigate whether Shoulders, or any other, in said county, was engaged in the unlawful business or occupation of selling intoxicating liquors as denounced by the statute. It may be, too, that as a matter of fact, upon full investigation by the grand jury, it might be determined that said Shoulders was not guilty of such crime; yet that was the very question the grand jury was investigating, and they had the right, and it was their duty, to ascertain any material fact from any witness that would tend to show this. Of course, no one could engage in such business or occupation without getting and having in his possession from time to time more or less intoxicating liquor; and if appellant received from Shoulders at said time such liquor, it would tend to show necessarily that he had such liquor in his possession at the time; otherwise he could not have delivered it to appellant. Since the rendition of the opinions in Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169, Starbeck v. State, 53 Tex. Cr. R. 192, 109 S. W. 162, Myers v. State, 52 Tex. Cr. R. 558, 108 S. W. 392, Southworth v. State, 52 Tex. Cr. R. 532, 109 S. W. 133, Field v. State, 55 Tex. Cr. R. 527, 117 S. W. 806, and Myers v. State, 56 Tex. Cr. R. 224, IIS S. W. 1032, this court has, uniformly and in a large number of decisions—■ unnecessary to collate—held that, in prosecutions for making a single sale of intoxicating liquors in i)rohibition territory, and in prosecutions for pursuing the business or occupation of engaging in such business, the fact that the accused has, about the same time, liquor in his possession, is material evidence, and can always be shown.

Judge White, in his Ann. P. O. § 329, lays down the following correct principles:
“False testimony is material not only when directly pertinent to the issue, but also if it tended to augment or diminish damages or to import greater credit to substantial parts of the evidence. Lawrence v. State, 2 Tex. App. 479. Perjury may consist not only in false and corrupt testimony relative to' the main fact immediately at issue, but also in such testimony, relative to material circumstances, which tend to prove that issue, and irrespective of the truth or falsity of the main fact at issue. Bradberry v. State, 7 Tex. App. 375. It is not. necessary that defendant should have sworn falsely as to every matter of fact material to be proved upon the trial. If his false testimony be material as to any one fact, it is sufficient. State v. Lindenburg, 13 Tex. 27; State v. Webb, 41 Tex. 67. If the false statement is alleged to be material, or so appears from the facts stated, it will be deemed material if it could have influenced the tribunal in which it was made. Rahn v. State, 30 Tex. App. 310 [17 S. W. 416, 28 Am. St. Rep. 911]; Martin v. State, 33 Tex. Cr. R. 317 [26 S. W. 400]; Williams v. State, 28 Tex. App. 301 [12 S. W. 1103]. The degree of materiality is of no importance. Williams v. State, 28 Tex. App. 301 [12 S. W. 1103]. It may be material if it only affects a collateral issue, as that of the credit of a witness. Washington v. State, 22 Tex. App. 26 [3 S. W. 228]; Williams v. State, 28 Tex. App. 301 [12 S. W. 1103].”
“The materiality of the alleged false statement is sufficiently alleged if it is simply averred that it was material to the issue. If such averment is made, the indictment need not show how the testimony became material. Massie v. State, 5 Tex. App. 85; Adams v. State, 29 S. W. 270; Chavarria v. State, 63 S. W. 312; Washington v. State, 22 Tex. App. 31, 3 S. W. 228; Henry v. State, 43 Tex. Cr. R. 177, 63 S. W. 642; Yardley v. State, 55 Tex. Cr. R. 488, 117 S. W. 146; McAvoy v. State, 39 Tex. Cr. R. 685, 47 S. W. 1000; Anderson v. State, 56 Tex. Cr. R. 365, 120 S. W. 462; Scott v. State, 35 Tex. Cr. R. 11, 29 S. W. 274: Johnson v. State, 34 Tex. Cr. R. 555, 31 S. W. 397; Williams v. State, 28 Tex. App. 302, 12 S. W. 1103; Partain v. State, 22 Tex. App. 104, 2 S. W. 854; Jernigan v. State, 43 Tex. Cr. R. 114, 63 S. W. 560.”

Mr. Branch, in his Criminal Law (section 650, p. 417), correctly says:

Judge White, again correctly says (section 328, Ann. P. C.):

“It is the province of the court, and not the jury, to pass upon the materiality of the alleged false statement. Donohoe v. State, 14 Tex. App. 638; Jackson v. State, 15 Tex. App. 579; Davidson v. State, 22 Tex. App. 372 [3 S. W. 662]; Washington v. State, 23 Tex. App. 336 [5 S. W. 119]; Smith v. State, 27 Tex. App. 50 [10 S. W. 751].”

So that the lower court did not err in overruling all of appellant’s contentions on this subject, and did not err in telling the jury as a matter of law, in substance, that such testimony was material to the said inquiry before the grand jury.

It was proven by Mr. Lipscomb, the district attorney, and, in effect, by Mr. Hancock, the foreman of the grand jury, and by Mr. Burnett, another grand juror, that appellant appeared before the grand jury, and, after being duly sworn, gave the alleged false testimony before it. It was also clearly shown that said Shoulders occupied a building cut up into four rooms by two partition walls, one running lengthwise near, but not in, the center, and the other crosswise towards the back of the building; in the two rooms on the east, cut off by said lengthwise partition, he used and operated a restaurant, the kitchen in the rear, and the tables and eating department in the front; that on the

other side of the building he used the other two rooms for a barber shop. The evidence was clearly sufficient to show the lengthwise .partition wall between these two bach rooms was only about 6½ or 7 feet high from the floor, although some of the witnesses thought it was higher. All the other partitions did go to or near the ceiling, which was some 18 feet or more from the floor. On the east of this building adjoining was a blacksmith shop, in the rear part of which was a swinging loft, or second story. In the partition wall between the blacksmith shop and the building so occupied by Shoulders, at or near the top, was a large crack or opening sufficiently large, as one of the witnesses said, for a man to crawl through. Ed Bell and John Collins, deputy sheriffs of said county, climbed up on said swinging loft or second story in said blacksmith shop to watch, and through said crack or opening could see into the rear rooms of said barber shop and restaurant. They both testified positively that on the evening of September 20, 1013, when they were thus secreted and watching, they saw appellant alone come back into said rear barber shop room, and call said Shoulders; that Shoulders went back to him in said room, and Bell said, appellant told Shoulders he wanted a pint of whisky; that Shoulders went to .a box in' said room, got out the pint of whisky, and then gave it to appellant; that the bottle had a red cross label on it; that when it was delivered to appellant, he took a drink out of it, put the bottle in his pocket, and then went back into the other part of the building; that they at once, as soon as they could, got down from their hiding place, went into said building, found appellant with said bottle of whisky in his pocket, showing some had been drank out of it — it was not full — took it, arrested him, and took him to the courthouse.

Appellant denied Shoulders delivered to him said pint bottle of whisky on said occasion. He and some of his other witnesses testified one Barlow brought two quarts of whisky from‘Dallas the day before and left it at appellant’s in the country to be kept for him; that the next day he was going to town, and, in Barlow’s absence, filled him a pint bottle and took it along to town-with him; that before he got to town he gave Ryan a drink, and when they got to Shoulders’ Ryan or Gray told him they wanted another drink; that they .all three then went through Shoulders’ barber shop into said back room, and both Ryan and Gray took a drink out of his bottle; that he himself did not then take a drink out of his bottle; he wanted it, but his doctor was treating him for kidney trouble, and advised him not to use it. Gray swore not only he and Ryan then took a drink out of said bottle, but that appellant also did. Appellant, Ryan and Gray, and two of Shoulders’ barbers all testified Shoulders did not on said occasion go into said back room with, or while appellant was therein, and, in effect, that they did not see Shoulders deliver a pint of whis-ky to appellant. From all the testimony the jury were authorized to believe that if said parties went back into said back room and took a drink with appellant it was a different occasion when appellant, went into said back room, called Shoulders therein, and while they two only were therein Shoulders delivered said pint bottle of whisky to appellant, and he then took a drink out of it, placed it in his pocket, and that that was the bottle the officers found in his pocket and took from him, and it was not the bottle he claimed to have brought from home with him. At any rate, all this was for the jury, and they found against appellant, with ample'evidence to sustain their finding.

Appellant made a motion for a continuance on account of the absence of Dollie Carter, who was sick, and on that account could not attend the trial. 1-Iis application seems to have been based on the assumption, and he so states therein, that said officers, Bell and Collins, would swear on the trial that they saw her on September 20; 1913, buy two bottles of whisky from said Shoulders in his said place of business. As a matter of fact, said officers, and neither of them, gave any such testimony, and there was no testimony from any other source to that effect or tending to that effect. In his motion for new trial on this ground he attaches the affidavit of said Dollie Carter, wherein she simply and solely swears she would testify:

“That I did not on or about the 20th day of September, A. D. 1913, or at any other time, buy any whisky from Lee Shoulders, no-r did I ever see him sell any intoxicating liquors to any one.”

So that her testimony was wholly immaterial, and could have affected no question in this case. It is true the indictment alleged that the grand jury were investigating whether said Shoulders was engaged in the business or occupation of unlawfully selling intoxicating liquors, and whether he made two sales of intoxicating liquors to said Dollie Carter. If there had been any testimony in this case to the effect that said Shoulders did make any such sales to her at such time, then her testimony would have been material, and a different question would be raised. This was his application for a second continuance. Under the circumstances the court committed no error in overruling his motion for a continuance, nor in refusing him a new trial on that ground.

The record shows that on September 20, 1913, or immediately thereafter, when the officers took appellant to the courthouse, the county attorney examined him as a witness, presumably investigating to see if said Shoulders had violated the liquor laws, and from testimony which he thus gave before the county attorney complaint was filed against him charging him with perjury; that he gave bond for his appearance before the district court to await the action of the grand jury on tills complaint against Mm; that when the grand-jury convened on the first Monday in October he was summoned before it as a witness. He then went to his attorneys, laid the matter before them, and they undertook to see the district attorney as to whether or not he could be compelled or should testify before the grand jury. He and his attorneys claim, and so testified in effect, that the district attorney promised him immunity from said perjury charge if he would testify before the grand jury and tell the facts. The district attorney denied that he had promised Mm immunity or agreed not to prosecute him for perjury if then committed before the grand jury. Before this case was tried he filed a sworn plea setting up this promise of immunity. The state, through its district attorney, denied and resisted the plea, and the whole matter was fought out by the testimony of the parties before the district judge, who, after-hearing all the testimony, held, in effect, that the district attorney did not make such agreement, and that, if he did, no court would approve it. We think it unnecessary to go into any lengthy detail of this matter. It is sufficient to say that the appellant in this case was not indicted for any supposed perjury committed by him before said county attorney. He was indicted, as shown and alleged in the indictment, for what he falsely testified before the grand jury on October 10, 1913. The district attorney, and no other, had the power or authority to make any binding agreement with appellant that he would not be prosecuted for perjury committed in his-testimony before the grand jury before it was given, and, if he had made such agreement, it would be contrary to public policy and void. It does not come under that class of authorities which authorizes the prosecuting officers to make an agreement with a party to turn state’s evidence and testify to facts that might incriminate him in his prosecution against some other person. Such contracts by the state, through its prosecuting officers, are permissible, and are always enforced, but surely, even in a case of that kind, the state’s officers could make no valid nor binding agreement whereby, in advance, they would agree not to prosecute him for perjury if he committed it in his testimony. The court, therefore, did not err in overruling his said plea and sustaining the state’s motion to strike it out, nor did he err in refusing to permit his said sworn plea to be introduced in evidence before the jury.

The court did not err in permitting Mr. Hancock, the foreman of the grand jury, to testify that appellant testified before the grand jury that he did not get any intoxicating liquors down at Lee Shoulders’, and that he said he didn’t have any, over the objection by appellant that it was immaterial whether Shoulders had any intoxicating liquors in his possession, because it was not a violation of law to have such liquor in his possession, and it was an immaterial issue as laid in the indictment. Nor did the court err in overruling his objections to the testimony of Mr. Lipscomb, the district attorney, as to the said testimony of appellant before the grand jury on the same grounds. Appellant’s objections seem to have been based on the mistaken idea, as we have shown, that in the said investigation pending before the grand jury the fact, if so, that said Shoulders had such liquor in his possession at the time, was immaterial; such a fact, if so, was very material to the inquiry and investigation then being made by the grand jury.

No reversible error is shown when said Deputy Sheriff Bell, while being cross-examined by appellant to this question, “I am talking about the first time you saw it [the whisky],” to which the witness answered, “He taken a drink right when he bought it and put it in his pocket,” which was objected to by appellant because the answer was not in response to his question, and there was no allegation in the indictment that defendant bought any whisky from Shoulders, and it was calculated to poison the minds of the jury against Mm. This testimony by this witness was pertinent testimony in the case. It may not have been in direct answer to the question, but that would be no ground to exclude it. It would be a matter of comment before the jury of the manner and voluntary testimony of the witness.

Neither was any reversible error committed in the court’s refusal to permit appellant’s witness Lindsey to answer a hypothetical question over the state’s objection that the hypothetical question was not based on the testimony in the case. The witness by his own testimony shows that he knew nothing about the situation so as to qualify himself to testify to the hypothetical question, and the answer sought was merely his conclusion.

Appellant himself testified on the trial. For the purpose of impeaching him and showing an implied admission, the state asked him if he did not go with another negro to said blacksmith shop, borrow a ladder, go up and look through the hole where the officers claimed they looked, and at the time tell Mr. Stowe that he was charged with perjury, and, after coming down from looking through the hole, if he didn’t state to him that the officers claimed that they saw him (appellant) up there, and that there was no use to swear a lie about it; that they could see him. He denied all this. The state then asked him if the man that was with Mm on said occasion didn’t state to Mr. Stowe in appellant’s presence and hearing that there was no use to swear a lie about it; that they could see him, and that he didn’t deny it. He denied this. The state then introduced the witness Stowe, who testified that upon said occasion he saw appellant in said blacksmith shop, and that he got a ladder and climbed up to the swinging loft where the opening between said blacksmith shop and said Shoulders’ place had been, and that when he came down he told the witness that he was the man charged with perjury. The state then asked Stowe if at that time the appellant or the man that was with him, in appellant’s presence and hearing, made the statement that there was not any use to swear a lie about it; that the officers could have seen him. The witness answered that he didn’t know whether these were the exact words or not, but that either the appellant himself or the other man said the officers could have seen what was going on. We think this evidence wa's admissible both to impeach appellant and as an implied, if not direct, admission by him. Nor did the court err in overruling appellant’s motion to strike out certain testimony purported to have been given by said Hancock, foreman of the grand jury.

Appellant had several objections to the court’s charge, and also requested several special charges. We have examined all these. The court’s charge is full, clear, and apt, and submits everything that was necessary or proper to be submitted to the jury over appellant’s complaints thereto. None of his special charges should have been given.

He lays particular stress on the point that he claims the court should have given a charge on circumstantial evidence. The law is too well settled in this state to need citation to the cases that it is only when the testimony to establish an accused’s guilt is wholly and solely circumstantial that it is necessary to give such charge. We think the testimony of the two officers, Bell and Collins, substantially stated above, was positive and direct, and that no charge on circumstantial evidence should have been given. See section S13, White’s Ann. C. C. P.; Ballard v. State, 71 Tex. Cr. R. 168, 160 S. W. 92; Law v. State, 71 Tex. Cr. R. 179, 160 S. W. 98; Branch, Crim. Law, § 203.

We have carefully studied this record and all the questions raised by appellant. We have not thought it necessary to take up each question separately, though we have considered and passed on all of them. In our opinion, there is no reversible error in this case, and the judgment will be affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant urges but two grounds:

(1) “Because the proof in this case absolutely fails to show the materiality of the matter assigned as perjury.”
(2) “Because the. court erred in holding there was no error in the trial court refusing to sustain his motion to strike out a certain part of S. H. Hancock’s testimony.”

1. In the submission of this case appellant’s attorneys in their oral argument, and also in their brief herein, strenuously insisted that the purported false testimony of appellant before the grand jury was not material. We undertook to show in the original opinion, and we think we did, that the appellant’s alleged false testimony was material, specifically so alleged in the indictment, and the allegations, in addition, showed that'it was. Appellant again vigorously contends that the proof does not show it was material, although it was alleged to be ; in other words, as he expresses it, that the proof “absolutely fails to show the materiality.” We think he is clearly mistaken in his contention, for the proof does show affirmatively the materiality of his false testimony. Appellant is right in his contention that it must not only be alleged to be material, but must also be proven to be material.

In every case where a party is charged by indictment with unlawfully engaging in the business or occupation of selling intoxicating liquors in prohibition territory, one of the most material items of proof always is to show that about the time he is charged with this offense he then either received, or had in his possession, intoxicating liquors. Of course, the more frequent the receipt and the greater quantity shown to be in his possession the more strongly it might tend to prove that feature of the offense; yet, unquestionably, it would be material to show that he had any in his possession, however small the quantity might be. As said by Judge Davidson for this court in Oliver v. State, 68 Tex. Cr. R. 417, 152 S. W. 1066:

“He may keep only a small amount .or may order it without keeping it on hand, and sell to parties, and yet engage in the • business.”-

shown in the original opinion, the indictment alleged that the grand jury -were investigating whether or not Lee Shoulders was engaged in or pursued the occupation or business of selling intoxicating liquors in vio-vioof the prohibition law, and appellant was before it as a witness, and deliberately, willfully, and corruptly did testify that Lee Shoulders did not have in his possession and did not deliver to him intoxicating liquors on or about September 20, 1913, and that his testimony in this respect was knowingly and willfully false. Mr. Lipscomb, the dis-disattorney, after showing that he was present as such before the grand jury when appellant was before it, testified:

“At that time the grand jury had under investigation the question of whether or not Lee Shoulders was unlawfully engaged in and pursuing the business and occupation of selling intoxicating' liquors in violation of law in Lamar county, Tex., after a local option election had theretofore been held in Lamar county prohibiting the sale of intoxicating liquors in Lamar county, and after the result of that election had been declared and published, and after the local option law was in effect in this county, and as to whether or not he had made more at least than two sales of intoxicating liquors, and had made two sales of intoxicating liquors to Dollie Carter about the 20th of September, 1913. Mr. S. H. Hancock was fore-
man of the grand jury, and administered the oath to the witness Houston Jones when he appeared before the grand jury to testify, and Houston Jones testified, in substance, before the grand jury, in answer to the questions, * * * that about the 20th of September, 1913, in Lamar county, Tex., Lee Shoulders did not have in his possession any intoxicating liquors in Lamar county, and also further testified that Lee Shoulders didn’t about the 20th day of September, 1913, deliver any intoxicating liquors to this defendant, Houston Jones.”

Mr. Lipscomb was not only not disputed in any particular, but Mr. Hancock,, foreman of the grand jury, and Mr. Burnett, another of the grand jurors, fully corroborated him.

Mr. Ed Bell, after showing that he and John Collins were in a position to see into the back room of 'Lee Shoulders’ barber shop, and did see therein on September 20, 1913, as shown in the original opinion, testified: ,

“On that day I saw the defendant Hous. Jones and Lee Shoulders. I saw Hous. Jones come through the barber shop; came back in the back end; came through the partition wall that run east and west, and came back in the back end and called Lee Shoulders, and Lee Shoulders came back there, and he told him he wanted a pint of whisky, and Lee went to a box and got out the pint of whisky, right by this partition door, and came back there and gave it to Hous. Jones, and he put it in his pocket.”

It is unnecessary to further detail his evidence wherein he showed that he and Collins at once got down from their hiding place, went to appellant and took from his pocket the said bottle of liquor, and identified it. Collins testified substantially the same thing. We cannot see how else it could be shown to be material, or what was lacking to show its materiality. Ernest Cox v. State, 174 S. W. 1067, not yet officially reported. So that we think there can be no sort of doubt that the state in this case proved that the said alleged false testimony by appellant was material ; in other words, not only the indictment alleged the testimony of appellant was material, but the state without doubt proved it was material.

2. Mr. Hancock, the foreman of the grand jury, testified:

“At the time Houston. Jones was before the grand jury they was investigating the case of Lee Shoulders, down on Bonham street, selling' intoxicating liquors in Lamar county. I don’t know who all the sales were made to; there was so many of them. There was an investigation made with reference to sales made to Dollie Carter by Lee Shoulders.”

This testimony was given without any objection at the time by appellant as to the question he now urges in the court’s refusal to sustain his motion to strike out certain testimony. After the evidence was all in appellant made a motion to strike out the following testimony by said Hancock, to wit:

“That, while acting as foreman of the grand jury, he had heard a witness say that Lee Shoulders had sold intoxicating liquors, and that he could not remember the number of sales testified to by said witness before said grand jury.”

As a matter of fact, Mr. Hancock gave no such testimony as is claimed in said motion. The court, in approving the bill to the overruling of the motion to strike out, as stated, merely in effect approved the bill certifying that he overruled the motion. He did not certify thereby that Hancock had testified any such thing. Even if Hancock had so testified, it would not present reversible error, because appellant was not on trial for making a sale or buying liquor. If Shoulders had been on trial, and the court had permitted such testimony against Shoulders, a different question would be presented. So that in no event does the bill present reversible error.

The motion is therefore overruled. 
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