
    KIDD v. STATE.
    (No. 9588.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1925.)
    Perjury ¡&wkey;87( I) — Evidence held sufficient to require instruction on issue whether defendant’s health and memory were so impaired as to make him unable to recollect indictments.
    In prosecution for perjury, evidence held sufficient to raise issue whether defendant’s health and memory were so impaired that at time of alleged perjury he was unable to recall indictments, so as to require giving of requested instruction on such issue.
    Commissioners’ Decision.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    Clyde Kidd was convicted of perjury, and he appeals.
    Reversed and remanded.
    Reeder & Reeder, of Amarillo, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

Appellant was cpnvicted in the district court of Potter county of the offense of perjury, and his punishment assessed at two years in the penitentiary.

Appellant' complains of the action of the court in refusing to give to the jury his special charge No. 5, as follows:

“If you find and believe from the evidence that the health of the defendant, Clyde Kidd, is impaired, and his memory is thereby affected and also .impaired, and weak, and on account of such impaired health and memory at the time he testified in the case of State of Texas v. Jesse U. Campbell, he could not recall that he had been theretofore indicted for other offenses than murder, you will acquit the defendant and say by your verdict not guilty.”

The appellant failed to testify in the case, but his father testified that he (appellant) had been afflicted and treated for epilepsy for iñany years and since he was small, and that his recollection from early boyhood up was such that he could not remember, and that he (the witness) had to look after all of his important business, and that in his business deals he would try to pay his debts several times. The testimony of the appellant’s mother and sister was to the same effect, which also was corroborated by the family physician, Hr. Johnson, who testified to having known the appellant nearly all of his life, and to his being sickly all of his childhood, and having epileptic fits for several years, and to having had typhoid fever, and the effect of same on his nervous system. He further testified to the effects that epileptic fits in childhood and appellant’s afflictions would have on his memory in his older age, etc., as follows:

“When one is anemic, it necessarily involves the brain as much or more than any other part of his anatomy. And as I before remarked, it lessens his recalling ability and impairs his brain'; it is dull; he can’t think back, and reason as a normal individual would. * * * I would say that I am quite sure his ability to remember in detail events that happened within four years ago is about on par with his physical and mental condition, and at this time it is below normal, * * * However, it is possible that, 'unless something makes a very deep impression on his mind, he would not remember it.”

The testimony above set out clearly raises the issue covered by the special charge refused, and we are of the opinion that the íearned judge was in error in refusing to submit same to the jury. There were other special charges given by the court, but same did not cover this phase of the case, and the court’s failure to have given such a charge when requested, we think, requires a reversal of this case.

The appellant strenuously insists that the state’s evidence failed to support the allegations in the indictment and that the learned judge erred in not instructing a verdict of not guilty. In view of the disposition we have made of this case, wé think it unnecessary to pass on this issue at this time.

Eor the reasons stated, we think the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  