
    CAMPBELL v. STATE.
    (No. 10132.)
    (Court of Criminal Appeals of Texas.
    June 16, 1926.)
    Perjury <&wkey;41 (8) — Accused’s testimony, in prosecution for possession and transportation of liquor, held not to sustain perjury conviction, being immaterial (Pen. Code 1925, art. 307 [309]).
    Where, in prosecution for possession and transportation of liquor, accomplice testified, without corroboration, that accused met him at schoolhouse and in pasture two miles distant he delivered liquor to accused and latter denied being at schoolhouse, denial was immaterial, and will not sustain conviction for perjury, in view of Pen. Code 1925, art. 307 (309).
    Commissioners’ Decision.
    Appeal from District Court, Potter County; Henry ¡3. Bishop, Judge.
    Jesse L. Campbell was convicted of perjury, and he appeals.
    Reversed and remanded.
    Culwell & Culwell, of Amarillo, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted in the district court of Potter county for the offense of perjury, and his punishment assessed at 2 years in the penitentiary.

The record discloses that the appellant was charged by indictment with perjury, in which it is alleged that:

“It then and'there became and was a material issue before said judge and jury in the trial of said criminal judicial proceeding whether or not the said Jesse L. Campbell, defendant therein, was on or about Friday, February 13, A. D. 1925, at any time between about 8 o’clock p. m. and about 11 o’clock p. m. of said day, personally present at the River Road sehoolhouse, about 6 miles north of Amarillo, in Potter county, Tex.”

This assignment of perjury in said indictment appears to have been based upon the testimony given by the appellant, in his behalf, on a former .trial in said court, wherein he was charged by indictment in one count with the unlawful possession of intoxicating liquor for the purpose of sale, and in the second count with unlawfully transporting intoxicating liquor; said indictment being based upon the same transaction that the perjury indictment was founded. The record discloses that it was contended by the state that the appellant traded his interest in a “taxi” business to the state’s witness, Spencer, for 54 quarts of whisky, of the value of $500, which whisky was delivered by said Spencer to the appellant in a pasture about 2 miles from the River Road sehoolhouse.

The appellant raised the question as to the materiality of the assignment of perjury by presenting to the court a 'special charge asking for a verdict of not guilty, which was refused. The appellant contends that it was immaterial whether he was at the schoolhouse or not, as that would not bear on the issue of whether he possessed or transported the whisky, which was alleged to have been delivered to him 2 miles away, and concerning which there was no allegation to the effect that it had been transported to or from the sehoolhouse. The testimony of the prosecuting witness, Spencer, as relied upon by the state to substantiate the allegations in the indictment upon which the perjury charge was based, was to the effect that Spencer and his wife had gone to the sehoolhouse to attend a school entertainment; that he was called out by the appellant, and that he and the appellant, in the nighttime, went in appellant’s car about 2 miles into the pasture and there secured .the whisky in question, which he (Spencer) had previously buried; that he delivered the whisky to the appellant, whereupon he and the appellant returned in said car to a point near the schoolhouse, where the witness got out, and the appellant proceeded to the city of Amarillo. The appellant took the witness stand and denied being at said sehoolhouse, and introduced several other witnesses who testified to the same effect, that appellant at said time was not there but in the city of Amarillo. There was some evidence tending to show that the appellant was at the sehoolhouse, id addition to the testimony of the witness Spencer, but no witness except Spencer testified to the sale or delivery of the whisky in question to the appellant, or to any fact or circumstance tending to show the alleged sale or transportation of the whisky in question ; nor was there any evidence introduced on the first count, to support the verdict of the jury herein, except as above stated. The state’s attorneys with this court have confessed error in this case on the count above mentioned, and we are of the opinion, after a careful examination of the entire record, that said attorneys are correct in their conclusion, and that said count upon which this appellant was convicted was based on an immaterial issue, and the evidence is insufficient to support the conviction thereon. Article 807 (309) of the 1925 Penal Code, under the perjury statute, states:

“Tne statement of any circumstance wholly immaterial to the matter in respect to which the declaration is made is not perjury.”

This court held on the appeal of the original case, charging the appellant with possessing and transporting intoxicating liquor and involving the same facts as those presented in this appeal, that the testimony failed to corroborate Spencer, the accomplice, in any material criminal fact. See Campbell v. State (Tex. Cr. App.) 280 S. W. 778.

Por the error above mentioned, we are of the opinion that 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. 
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