
    MARTIN v. STATE.
    (No. 9077.)
    (Court of Criminal Appeals of Texas.
    June 10, 1925.)
    1. Perjury &wkey;>36 — Question of materiality of alleged false testimony in perjury case is usually question of law.
    Question of materiality of alleged false testimony in perjury case is' usually question of law.
    2. Criminal law <&wkey;829(l) — Special charge on proposition of law, covered by main charge, will be refused.
    Special charge on proposition of law, covered by main charge, will be refused.
    3. Criminal law &wkey;829(18) — Requested charge held covered by general charge on reasonable doubt.
    Requested instruction in prosecution for perjury, that false statement, made through inadvertence, or under agitation, or by mistake, is not prejudicial, held to have been covered by general charge on doctrine of reasonable doúbt.
    4. Criminal law &wkey;687(I) — Court’s action in reopening of case will not be disturbed, where .there was no showing of an abuse of court’s discretion.
    Action of court, in permitting state in prosecution for perjury to reopen case before argument, and introduce further testimony showing motive of defendant in giving false testimony, will not be disturbed in absence of showing that court abused its discretion.
    5. Criminal law &wkey;655(5) — .Discussion between court and attorney not party to action held not prejudicial to defendant’s rights.
    In prosecution for perjury, action of court in engaging in discussion with an attorney who was not employed in case, though unseemly and unwarranted, held not prejudicial to defendant’s rights.
    " Commissioner’s Decision.-
    Appeal from District Court, Bowie County ; Hugh Carney, Judge.
    Arnett Martin • was convicted of perjury, and he appeals.
    Affirmed.
    E. Newt Spivey and J. Q. Mahaffey, both of Texarkana, 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 indicted and convicted in the district court of Bowie county for the offense of perjury, and hiá punishment assessed at confinement in the penitentiary for a term of two years.

We have carefully examined the appellant’s motion to quash the indictment, and have reached the conclusion that same was properly overruled. The indictment follows the statute and the approved form, and was sufficient' to charge the offense of perjury.

By bill of exception No. 2, appellant complains because the cpurt’s charge did not furnish the jury with any guide or direction to enable them to determine from the charge whether the testimony alleged in the indictment to have been given by the defendant and alleged to be false was material to the issues in the case in which the testimony was given. The question of the materiality of the alleged false testimony in a perjury case is usually a question of law to be determined by the court, although in some cases it may become a mixed question of law and fact. In this case, we think there was no issue as to the materiality of the false testimony, and the court’s charge thereon was correct..

By proper bill, appellant complains at the court’s refusal to give his special charge No. 3, to the effect that if the jury believed that Arnett Martin in the case of the State of Texas v. Floyd, testified that he saw Floyd drive a Ford car and stop it on Third street, and leave the engine running, and go on across toward the City Plall, but that in fact Floyd did not leave the ear, and was not on Third street, and did not go to the City Hall, but, that Martin, the appellant, was mistaken in recognizing .Floyd, he would not be guilty. This identical question was pertinently and properly submitted by the court in his main charge to the jury. The same question, in a different form, was tendered by appellant in his special charge No. 1, and was properly refused because it was covered by the court’s main charge.

By bill of exception, appellant claims that the court erred in refusing to tell the jury that a false statement, made through inadvertence, or under agitation or by mistake, is not perjury. In the court’s main charge, the court, after setting out the alleged false testimony, charged on the-question of honest mistake, and charged in connection therewith the doctrine of reasonable doubt, and the charge as thus given fully protected appellant’s right in the matter complained of.

By bill of exceptions No. 6, appellant complains at the court’s action in permitting the state to reopen the case, and introduce further testimony showing motive on appellant’s part for 'the giving of the false testimony in the case of the State v. Floyd. This additional testimony was received by the court before the argument was concluded, and before the argument had even begun, and it was within the sound discretion of the court to receive such additional testimony, and the bill of exceptions shows no abuse of. the court’s discretion in this matter.

The observation just made will apply with equal force to bill No-. 7,

Bill No. 8 complains at the court’s action in engaging in a colloquy with an attorney who was not employed in the case, but who at,the request of appellant’s counsel made some suggestions to appellant’s counsel with' reference to the conduct thereof. The colloquy as disclosed by this bill was unseemly, and we think unwarranted, but we are not prepared to say it in any manner affected the appellant’s rights.

Finding no error in the record, it is'our opinion that the judgment of the trial court should be. affirmed.

PER OURIAM. 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.  