273 S.W. 848

KELLY 
v. 
STATE.

(No. 9205.)

Court of Criminal Appeals of Texas.
June 10, 1925.
        
Commissioners' Decision.
Appeal from District Court, Freestone County; J. R. Bell, Judge.

Claude Kelly was convicted of perjury, and he appeals. Reversed 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

Page 849
the Carter Case, that he 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, took 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 case was based was 
material.
        Because the proof is insufficient to show that the alleged false testimony 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.