
    MANGAN v. STATE.
    (No. 7545.)
    (Court of Criminal Appeals of Texas.
    May 30, 1923.)
    1. Criminal law <s=>507(9) — Testimony of accomplice must be corroborated.
    Under Code Cr. Proc. 1911, art. 801, providing that a conviction cannot be had on ^he testimony of an accomplice unless corroborated, in a prosecution for false swearing, the refusal of an instruction that a witness who testified that the accused knowingly made a false affidavit to the age of a woman whom the witness wished to marry, and for which the witness paid the accused, was an accomplice, and that to support a conviction his testimony would have to be corroborated by other testimony tending to connect the accused with the crime alleged, was error.
    2. Perjury <@=>32(2) — Exclusion of testimony of existence Of* another person of same name ■as person as to' whose age perjury was charged held error.'
    In a prosecution for false swearing that a Miss E., aged 17, was over 18 years of age, the exclusion of testimony that the accused thought the person in question was another Miss E. whom he had met and who appeared to be over 18 years old was error, since one of the defenses against the crime of false swearing is that the alleged false statement,was made under a mistake.
    3. Perjury <@==32(2) — Appearance that person was over certain age held material in , prosecution for perjury as to age of person.
    In a prosecution for false swearing as to the age of a person, if the accused had met the person in question and,had concluded from her appearance that she was over the age to which he made affidavit, that fact would be material.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Mathew Mangan was convicted of false swearing, and he appeals.
    Reversed and remanded.
    J. Ered Rose and Collins, Dupree & Cren-shaw, all of Hillsboro, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.,
   LATTIMORE, J.

Appellant was convicted in the district court of Hill county of the offense of false swearing, and his punishment fixed at two years in the penitentiary.

Willie Heath went to get a marriage license, but was informed by the county clerk of Hill county that he must produce some person who was willing to make an affidavit that he was 21 years of age and that his intended wife was 18 years of age. Heath produced appellant, who made the affidavit and who w;as later indicted in this case for having falsely sworn that Nettie Epps, the young lady in question, was over 18 years of age, and that there were no legal objections to their marriage. It seems to be admitted by the state that the indictment did not contain a proper legal traverse of the allegation that appellant falsely swore there were no legal objections to the marriage of Nettie Epps.

Upon the trial of this case the state introduced "Willie Heath, who testified that before appellant made the affidavit in question he was informed by witness that Nettie Epps, the young lady in the case, "was only 17 years of age. This witness further testified that he gave appellant $5 as a consideration for the making of the alleged false affidavit, also that he was present when appellant made, signed, and swore to said affidavit. Thereafter appellant presented- a special charge to the court asking that the jury be instructed that Willie Heath was an accomplice and, in appropriate language, that appellant could not be convicted upon the testimony of Willie Heath unless same was corroborated by other evidence tending to connect appellant with the crime charged. This was refused. We qre unable to perceive upon what theory the learned trial judge declined to tell the jury that Willie Heath was an accomplice. It is plainly provided by article 801 of our Code of Criminal Procedure that a conviction cannot be had upon the testimony' of an accomplice unless cqr-roborated, and 'many decisions. are cited by Mr. Vernon under said article announcing rules for determining who are accomplices when offered as witnesses. There seems to us fió’escape from the proposition that one who employs another to commit a crime, and is present when the crime is committed, is an accomplice. Authorities need not be cited. The learned court erred in declining to give the special charge asked.

Another question is raised. It is developed in the record both from the state and- defense witnesses that there was another Miss Epps living in a community in Hill county, and that she was a cousin of the Miss Epps in question in this case. Appellant and his witnesses testified that he had met and been introduced to a Miss Epps in the Prairie Point community. Appellant claims to have told young Heath, when the latter wished him to make the affidavit in question, that he had met a Miss Epps and that he asked Heath if there were two of the Misses Epps and was informed by Heath that there was only one. Appellant offered to testify himself to the effect that the Miss Epps whom he had met was believed by him to be the Miss Epps named and referred to in the affidavit, and further sought to testify and prove by another witness that the Miss Epps whom he had met at Prairie Point looked to him and had the appearance of being over 18 years of age. This latter testimony was rejected, and in this, also, we think the trial court in error. One of the defenses against the crime of false swearing is that ■ if the alleged false statement was made under a mistake, the party accused is not guilty. This proposition of law was correctly submitted to the jury by the trial judge. If appellant had met a Miss Epps who appeared to him to be more than 18 years of age and he believed her to be the young lady about whose age he was making the alleged false affidavit, this fact would seem to be as material’as would the fact if he had met the young lady who was actually in question and had concluded from her appearance that she was over 18 years of age.

For the errors mentioned, the judgment will be reversed, and the cause remanded. 
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