396 -"LEDNUM V: STATE. [169 •LEDNUM V. STATE. Opinion deliveied bctbber ;. , • . • .; ' 5; 1925. . AFFIDAVIT— NATERIATA7.—iin , Andictment tdr perjury alleging that. aeensed EseiY, Made . affiCfaVit lieiore a • jUStiCe 'of the peace of a certain townahip 'and countY that' he saw a 'person namied making WhiskeY, Without it g ting Where' he-Wa'a Making it, is insufneient in failing to' show that ,the false' affidavit related • .material matter.; . , • ;..: ,:■:! i !.„ 'Appeal from Clay Cirenit 'Court; Western' DiStridt'; W: Bandy, Judge; rer'erSed: •:' Raley th• *libauY11:, for aPellant: • ' :H. W. AA9legat, _Attorney General, and!'Dai•den '11. oe, *sista/lit, for appe*e: •. ' j. ApPellaM 'Wa* . fnaieted;' tii6a; 'and 'Con-OCte'd of the Crime Of perjUr ` yr :i 'the:WeSterfitbistriet of' Cray Connty; and, as a plimiSbMent therefor,' Was , adjudged, to serve a tern]. of 'Ono Year ,in tbe State tentiary From: the judgment. of conviaion' ;'aPPellant has* „ . dtily, Prosecnted an , aioPeal: to' ' , Mainly : for a` reVersal: of the',judgmenf upon the ) :illeged insuffieieficy , Of the evidence to sustain ibe chaige of 1-46:t--IitYy. We agree with apPellant 'in this' dOidention. : ' 'The , basiS'of the charge was an •affidai-it•-Whieh'aPellant,,Made befOre'Ott6 SullinS; a dulY'iinalified'ilis ' tice Of the' peace of ' Kilgore township': in 'the WeS'fern Pistriet''Of Cray dOlinty. : The' fficlaVit iS AS : f011OWs-:. ' ' • i ` I; §hVT Ch6.1. 1.63T *Powers' . making whiskey on or about July 15, 1923. I have•gben'TharleY POwers Making . wbiskey *sortie Shcof'Seven•tirnes; and I have drank some of it more tbdri once: • • "W. H. Lednum. "Subscribed and sworn to before me this August 1, 1923. Otto Sullins, J. P." This was the only evidence appellant gave before said justice of the peace, and it was alleged in the indictment that he unlawfully, wilfully, corruptly, falsely, knowingly, voluntarily, and feloniously made the affidavit. Section 2588 of Crawford & Moses' Digest defines perjury as follows :
"Perjury is the wilful and corrupt swearing, testi- • fying or affirming falsely to any material matter in any case, matter or proceeding in any court, tribunal, body corporate or other . officer having by law authority to administer .oaths." According to this definition, the materiality of ,the alleged false testimony must have appeared in the affidavit. It should.have shown on its face. that appellant saw Charley. Powers making whiskey in Clay ,County. It Avas necessary for the venue to appear inf the affida.vit :to make the subjectmatter contained therein material.. It ,was :entirely imMaterial if 'appellant saw Charley Powers •aking,whiskey.insome other county., TheAudgment is therefore reversed, and, the cause is remanded with directions to discharge appellant.'
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.