
    WADDLE v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1913.)
    1. Perjury (§ 12) — Evidence.
    Where a third person executed to accused a mortgage note for $650, and a note for $80, not secured by a mortgage, and the $80 note was a genuine one, while the $650 note was given to prevent the third person’s creditors from levying on the mortgaged property, the testimony of accused on the examining trial of the third person for disposing of mortgaged property, that the third person owed him the $650 note, sustained a charge of perjury.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 55-61; Dec. Dig. § 12.]
    2. Perjury (§ 26) — Indictment — Sueet-CIENCY.
    Where an indictment for perjury, based on the testimony of accused on the examining trial of a third person for disposing of mortgaged property, that the third person owed him two notes, one for $650 and one for $80, and that he had a mortgage to secure the $650 note, did not negative the fact that a mortgage had been given, and did no.t negative the fact that a. third person had disposed of mortgaged property, and did not allege that there was no mortgage to secure the $80 note, which was genuine, it was insufficient to charge perjury.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 90-94; Dec. Dig. § 26.]
    
      S. Pebjuey (§ 29) — Indictment — Suett-CIENCY.
    The defect in the indictment was not cured by evidence authorizing the inference that accused swore falsely as to the amount of his debt, and as to the amount paid him by the third person.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 97-106; Dec. Dig. § 29.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    J. T. Waddle was convicted of perjury, and he appeals.
    Reversed and dismissed.
    Smith & Palmer, of Comanche, for appellant. J. R. McClellan, Dist. Atty., of Gates-ville, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same-topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   .HARPER, J.

In this case it is made to appear that appellant went before a justice of the peace and swore out a complaint against J. C. Hale, charging him with disposing of mortgaged property. Upon the examining trial it appears that appellant swore that Hale owed him two notes, one for $65,0 and one for $80, and he had a mortgage to secure the payment of the $650 note. The predicate upon which the charge of perjury is sought to be based is that, in fact, Hale did not owe him a note for $650, but only owed him the $80 note. A debt being established beyond the peradventure of a doubt, the material issue in the case against Hale would be shown, had he disposed of mortgaged property. There is no allegation in the indictment that a mortgage had not in fact been given to secure the $80 debt. If we look to the entire record, from the state’s standpoint, it discloses that Hale had, in fact, given appellant a note for $650 and a mortgage to secure the payment of it, while, in fact, he had not given any mortgage to secure the note for $80; that the note for $80 was a genuine note, while the $650 note was given to prevent Hale’s creditors from levying on his crop; and appellant, in testifying that Hale owed him this note and had paid him, testified falsely. The evidence would sustain a ease of perjury based on these facts, but the allegations in the indictment do not correspond with the evidence.

There is no allegation in the indictment that there was no mortgage to secure the $80 note; there is no allegation in the indictment that the $650 note was without consideration, and the mortgage was without consideration. The real facts, from the state’s viewpoint, are that no debt was due upon which a mortgage was given to secure, yet there are no such allegations in the indictment. The indictment failing to negative the fact that a mortgage had been given, and failing to negative the fact that Hale had disposed of mortgaged property, it is insufficient, in law, to charge perjury.

The material issue was, Had Hale disposed of mortgaged property? but in the indictment this issue is wholly ignored. From the evidence we would be authorized to infer that appellant swore falsely as to the amount of his debt, and as. to the amount paid him by Hale; but this does not cure the lack of allegations in the indictment. From the evidence we would be authorized to draw the conclusion that appellant testified that Hale owed him $650, and he had a mortgage on his cotton crop to secure same, which allegations were, in fact, untrue; but there are no allegations of this character in the indictment.

We are of the opinion that the indictment charges no offense, and the judgment is reversed and dismissed.  