
    KELLY v. STATE.
    (No. 9205.)
    (Court of Criminal Appeals of Texas.
    June 10, 1925.)
    Perjury <&wkey;33(6) — 'Evidence held insufficient to show materiality of alleged false testimony.
    Evidence held insufficient to show materiality for alleged false testimony on trial of third person for seduction, that defendant had intercourse with prosecutrix at particular time.
    Commissioners’ Decision.
    Appeal N from District Court, Freestone County; J. R. Bell, Judge.
    Claude Kelly was convicted of perjury, and he appeals.
    Revers'ed and remanded.
    Edwards & French, of Fairfield, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the district court of Freestone county, for the offense of 'perjury, and his punishment assessed at confinement in the penitentiary for a term of two years. . ,

The record shows nothing more than that E. Walter Carter was charged with seducing Sedalia Dawson under an indictment alleging that the offense occurred on or about December 1, 1921. There was no proof offered that the offense of seduction was committed December 1, 1921. The indictment charging this offense was the only evidence offered on this issue. The state then showed that appellant swore, in April, 1924, in the trial of the Carter Case, that lie had intercourse with Sedalia Dawson in the summer of 1921, and introduced testimony tending to show that this statement was false. This evidence is insufficient to show the materiality of the false statement cited as perjury. It will be noted that the record does not show whether the act of intercourse, to which appellant swore in the Carter Case, toolr place before or after prosecutrix was seduced, and there is.no evidence even tending to show the period of time intervening between the time of the alleged seduction of prosecutrix and the summer of 1921, when appellant swore in the Carter Case that he had intercourse with prosecutrix.

With the record as -stated, it was utterly impossible for the trial court, as it is impossible for this court, to determine that the alleged false statement on which the perjury in this 'ease was based was material.

Because the proof is insufficient to show that the alleged false testimdny was material, this case is reversed, and the cause remanded. >

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.  