testified to before the court and jury on the trial of the case, and in no contingency are we authorized or permitted to consider ex parte affidavits for the first time filed in this court as to any evidence which was not before the lower court. In no contingency, even in the lower court, would such ex parte affidavits be admissible. It may be that if these persons, who now make affidavits, had been before the court and testified, their testimony may have been material, and it might have affected the result of the case; but, as stated, we, in no contingency, can consider such matters. Even some of the statements in these ex parte affidavits are of matters occurring long after even the trial of this case in the court below. We think nothing is presented in the motion for rehearing which would authorize or require this court to reverse this case. There was no claim in the lower court, nor is there in this, that the purported testimony of these witnesses, whose ex parte affidavits are attached, was newly discovered testimony in terms of law. There is nothing else in the motion requiring discussion. It is therefore overruled. Appeal from District Court, Taylor County; Thomas L. Blanton, Judge. Pleas Reed was convicted of perjury, and he appeals. Reversed and remanded. J. M. Wagstaff and S. P. Hardwicke, both of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. HARPER, J. Appellant was convicted of perjury, and his punishment assessed at two years' confinement in the state penitentiary. This offense is alleged to have grown out of the trial of Henry Ethridge, who was charged with having slandered Miss Minnie Simpson by saying: "I would not be caught in daytime with that girl for $1,000. She is nothing but a damned whore." On the trial of that case it is alleged appellant willfully, deliberately, and falsely swore that he had had carnal knowledge of the said Miss Minnie Simpson. Appellant moved to quash the indictment and in arrest of judgment on several grounds. We do not deem it necessary to state them, but, after a careful perusal of the indictment, we think it subject to none of the objections made, and that it clearly and succinctly charges the offense of perjury. Neither do we think there is any merit in the contention that the evidence will not sustain the verdict. The testimony of several witnesses shows 1. PERJURY 32-EVIDENCE-ADMISSIBIL- that appellant on the trial of Henry Ethridge REED v. STATE. (No. 3423.) (Court of Criminal Appeals of Texas. March 17, 1915.) ITY. Where accused, who was charged with falsely testifying that he had had sexual intercourse with the prosecutrix in a slander case, attacked prosecutrix's reputation for chastity, evidence showing her good reputation for chastity, as well as that of a medical examination disclosing that she was a virgin, is admissible. [Ed. Note. For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. 32.] 2. PERJURY 32-EVIDENCE-ADMISSIBIL ITY. In a prosecution for slanderously charging a female with being a whore, accused testified he had had intercourse with her. On being prosecuted for perjury, accused offered a witness who testified that the prosecutrix admitted having intercourse with a named man. Held, that evidence of statements by the named man that he had not had improper relations with prosecutrix, thus contradicting the witness, was inadmissible. [Ed. Note.-For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. 32.] 3. CRIMINAL LAW 1172-APPEAL-HARMLESS ERROR. The giving of a charge calling the evidence to the attention of the jury and informing them they might consider it in passing on the credit of the witness was prejudicial. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159– 3163, 3169; Dec. Dig. 1172.] 4. CRIMINAL LAW 689-TRIAL-EVIDENCE. After the case has been submitted to the jury, evidence to show authority for the holding of court in a hotel during the building of a new courthouse was improperly received. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1624; Dec. Dig. 689.] swore that he had carnally known Miss Simpson on two occasions. In that case, as in this, it was a material issue as to whether Miss Simpson was a virtuous and chaste female, or a wanton. The verdict of the jury finds that she is a pure and chaste woman, and that appellant never at any time had carnal knowledge of her, and the evidence certainly supports that finding. [1] Appellant objected to the state proving that the reputation of Miss Simpson in the community where she lived as a virtuous and chaste girl was good. As appellant, by the testimony of Miss Vera Fuller, Emmett Taylor, and others, had attacked Miss Simpson in this respect, there was no error in admitting the testimony. Appellant insists that the credit of a witness cannot be supported by this character of testimony. He is correct in this contention, but the testimony was not offered for that purpose, but offered to refute the evidence introduced by appellant tending to show that she was not a virtuous and chaste female. The testimony of the four physicians who testified they had made a physical examination of her, and that she was a virgin, and had never had intercourse With any man, and the testimony that her reputation was that of a virtuous and chaste woman, was admissible on that issue, and the court did not err in so holding. [2, 3] We do not deem it necessary to write on each and every ground in the motion, as, in our opinion, none of them present error, except those hereinafter discussed. Appellant introduced Miss Vera Fuller as a witness, and she testified that Miss Simpson had admitted to her that on returning from an entertainment at Cedar schoolhouse in company with Harry Self the said Harry Self had had intercourse with her three times. Miss Simpson denied ever having such a conversation with Miss Fuller. The state did not call Harry Self then as a witness, as it could have done, if it desired to prove by him that he had never had intercourse with Miss Simpson. Instead of doing so, it called a number of witnesses who testified they heard Self testify on the trial of Henry Ethridge, and that on that trial Self testified he had never had intercourse with Miss Simpson, and that he had never seen anything wrong in Miss Simpson's conduct. Self was not dead, nor beyond the jurisdiction of the court; in fact, the record discloses he was in attendance on this trial, and we cannot understand why the state did not call him as a witness, instead of calling other people to testify to what they heard Self testify on the trial of Henry Ethridge in the county court. Appellant objected to the witnesses being permitted to testify to what they heard Self testify in the county court, and his objection should have been sustained. Self was not introduced as a witness in the trial of this case. Again it is shown by the bill that the court instructed the jury: "Gentlemen, if you should consider this testimony at all, you will consider it only in passing upon the credibility of the witness Miss Vera Fuller, and for no other purpose. You will consider it for no purpose whatever against the defendant. But, if you should consider it at all, you may consider it only in passing on the credibility of the witness Miss Vera Fuller." sion was discovered. The jury was recalled, and testimony admitted showing authority to hold court in the Grace Hotel building. Appellant objected to the jury being recalled, and to any additional testimony being introduced in evidence. As our Code provides that evidence may be admitted at any time before the conclusion of the argument, it was improper for the court to admit this testimony after the jury had retired to consider the case. However, as the testimony admitted had no bearing on the issue of the guilt or innocence of the defendant, we would not feel inclined to reverse the case because this testimony was admitted at an improper time, but, on account of the errors herein before pointed out, it becomes necessary to reverse and remand the case, and attention is called to this matter that it may not occur again. The judgment is reversed, and the cause remanded. DAVIDSON, J. (concurring in result). I agree to the reversal. Other questions I believe are reversible. I do not agree to the qualification put by the opinion on statute forbidding testimony after argument closed. White's Ann. C. C. P. art. 697, and notes for cases. Also, by article 735 White's C. C. P. it is only when jury disagrees as to evidence can witness be recalled. See notes for cases under that article. The jury cannot be recalled to hear any new fact. Tarver v. State, 43 Tex. 564; Edmondson v. State, 7 Tex. App. 116; Lorance v. State, 37 Tex. Cr. R. 453, 36 S. W. 93; Williams v. State, 35 Tex. Cr. R. 183, 32 S. W. 893. It is not a question of trial vel non. This judgment ought to be reversed, because there is no evidence in the record that Ethridge ever slandered Miss Simpson as alThere was a direct conflict in the testimony leged in the indictment. Appellant's evidence of Miss Fuller, defendant's witness, and Miss was material, if at all, because it went to Simpson, state's witness, and the jury by prove she was a whore, as it is alleged that this instruction is told they may consider this Ethridge stated. If Ethridge did not make improperly admitted testimony in passing on that statement, there was no issue in the the credit they would give to the testimony slander case, and could be none in this case. of defendant's witness. As the testimony The record does not show Ethridge ever made was inadmissible, the court emphasizes the such statement. error in admitting it by specifically authorizing the jury to consider it in passing on the credit to be given defendant's witness on an issue in which the testimony of the defendant's witness and the state's witness was in direct conflict. [4] Another matter we wish to call attention to is that in another bill it is shown that the Taylor county courthouse was being rebuilt at the time Henry Ethridge was tried, and that the county court was held in the Grace Hotel building. During the trial of this case it was developed that the Ethridge trial was held in the Grace Hotel building, and no authority to hold court in said building was introduced in evidence. After the jury had been instructed by the court and retired to consider their verdict, this omis March CUTBIRTH v. STATE. (No. 3424.) he appeals. Reversed and remanded. Abilene, for appellant. C. C. McDonald, Asst. from a conviction for perjury. It is a compan- There was no evidence introduced in this case after the argument and charge as to the place where either the district or county court was held like there was in the Reed Case. With COX v. STATE. (No. 3487.) (Court of Criminal Appeals of Texas. March 17, 1915.) 1. WITNESSES 406-IMPEACHMENT. In a prosecution for slander against one who called a female a whore, accused testified that he had had intercourse with the prosecutrix. Thereafter accused was charged with perjury. A witness testified that the prosecutrix admitted to her that she had intercourse with a named man. Held, that the witness could not be contradicted by evidence of statements by the man named that he never had any improper relations with the prosecutrix. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. 406.] 2. PERJURY 33-EVIDENCE-ISSUES. In a prosecution for slander brought against one who stated that a young woman was no better than a whore, accused testified that he had had intercourse with the woman. The issues in the slander case were the truth of the statement and the utterance of the words. Held that, in a subsequent prosecution for perjury, proof that the defendant in the slander case uttered the slander as alleged was not essential to a conviction; accused's testimony at all events being material to the issues. [Ed. Note. For other cases, see Cent. Dig. §§ 117-124; Dec. Dig. 3. PERJURY CIENCY. Perjury, 33.] 25 INDICTMENT SUFFI An indictment for perjury must show the materiality of the false testimony, and, where it averred that, in a prosecution for slander in charging a female with being a whore, accused falsely testified that he had sexual intercourse with her, and that in the slander case truth of the charge was one of the issues, it was sufficient. [Ed. Note. For other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. 25.] 4. PERJURY 33-PROSECUTION-EVIDENCE. In a prosecution for perjury the evidence should clearly show the materiality of the alleged false testimony. [Ed. Note. For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. 33.] 5. WITNESSES 360 CROSS-EXAMINATION. Accused, who was charged with falsely testifying that the prosecutrix in a slander case permitted sexual intercourse, offered witnesses to show that prosecutrix was not a virtuous female. Held, that it was permissible to show on cross-examination of these witnesses that they attended church functions and social gatherings with the prosecutrix. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1165, 1166; Dec. Dig. 360.] Davidson, J., dissenting in part. Appeal from District Court, Callahan County; Thomas L. Blanton, Judge. "I would not be caught in daytime with that girl for $1,000. She is nothing but a damned whore." It was alleged in the county court in the information that appellant was sworn and testified as a witness in the case, and that he testified that he had had sexual intercourse with Minnie Simpson behind her father's store in Potosi. The indictment possibly may be sufficient to allege the materiality of the testimony, but it is doubtful. I will not write, however, upon that, inasmuch as my Brethren in the companion cases of Reed v. State, 174 S. W. 1065, and Cutbirth v. State, 174 S. W. 1066, this day decided, have held the indictment sufficient. 1. There are several attacks made on the record because there was no evidence introduced on the trial showing that Ethridge, the defendant in the slander case, had ever used the language imputed to him in the information in the county court; in fact, the statement of facts does not show that Ethridge ever made the statement. Without this, appellant's testimony, under this indictment, would not be material. His testimony, if material, in the county court arose out of the fact that it was germane to the allegation that appellant had said of Miss Simpson that she was a whore, and, if he testified in the county court, it was in aid of appellant's side of the case, and to sustain his statement that she was a whore. If Ethridge did not make the statement that Miss Simpson was whore, then appellant's testimony would not be material. It is a well-settled rule, under the decisions wherever that question has come, that the indictment must not only al a lege the materiality of the testimony, but it must also be shown as a prerequisite to conviction that the testimony was material. Mr. Branch thus tersely and correctly states the rule:: "If the statement on which perjury is assigned is not shown by the evidence to be material, conviction will not be sustained." Branch's Crim. Law, § 647; Garrett v. State, 37 Tex. Cr. R. 204, 38 S. W. 1017, 39 S. W. 108; Pyles v. State, 47 Tex. Cr. R. 435, 83 S. W. 811; Liggett v. State, 47 Tex. Cr. R. 450, 83 S. W. 807; Maroney v. State, 45 Tex. Cr. R. 524, 78 S. W. 696; McVicker v. State, 52 Tex. Cr. R. 508, 107 S. W. 834; Wilson v. State, 27 Tex. App. 47, 10 S. W. 749, 11 Am. St. Rep. 180; Lawrence v. State, 2 Tex. App. 479. In the Garrett Case, supra, it was said: "The authorities require that the indictment shall show the materiality of the alleged false testimony, or shall allege that the same was maErnest Cox was convicted of perjury, and terial; and in either event, as we understand he appeals. Reversed and remanded. it, the facts must be proved which show the ma teriality of the alleged false testimony. If the appellant's testimony would not be material assignment is based on false testimony delivered on the question, for in that event there would in a judicial proceeding, so much of the record in that proceeding must be shown as to author- be nothing before the court. In a perjury ize the court to declare that the testimony alleg-case the alleged false statement must be maed to be false was material to some issue in the terial, not only alleged so in the indictment, case. Mr. Bishop says: The allegation of ma- but it must be so proved. The strength of teriality must also be proved. It is not enough that the testimony was actually admitted; yet it suffices that the indictment sets out the facts whence the materiality judicially appears. Where it does not, the course is to prove all or so much less than all of the pleadings and evidence brought forward at the former trial as will duly present the question; whereupon the court, not the jury, will decide, as of law, whether or not what the defendant is shown to have testified to therein was material.' See 2 Bishop's New Crim. Proc. § 935. Our own court has followed the principle here laid down. See Lawrence v. State, 2 Tex. App. 479. and Wilson v. State, 27 Tex. App. 47 [10 S. W. 749, 11 Am. St. Rep. 180]." the materiality would not be questioned, but the fact that it was material was the paramount question. Unless it was material, the state had no case, for perjury is based upon the fact and the law which says that the alleged false testimony must be material. Without showing that Ethridge had made that statement, the state failed to show the materiality of appellant's testimony that he had had intercourse with Miss Simpson. It must be remembered that the materiality in a perjury indictment bears upon the issue charged in the indictment, and not on the a lie or stated a falsehood. That falsehood, Presiding Judge White delivered the opinion in the Wilson Case, supra, and the head-general broad proposition he may have sworn notes state correctly the rule as follows: "It is essential in a perjury case not only that the indictment shall allege that the court before which the judicial proceeding in which the perjury is charged to have been committed had jurisdiction of such judicial proceeding, but that fact must be established by the proof." if it was one, must bear upon the issue stated in the indictment, and must be material to that issue. The mere allegation of an issue in an indictment does not prove itself; it may be sufficient as pleading, but the pleading must be proved to be true, and by two witnesses, or one witness with strong corroborating testimony. If this record had shown that Ethridge made the statement imputed to him, we would have a different question, but, inasmuch as this record does not show that Ethridge ever made such statement, the state has failed to show the materiality of the alleged false evidence of appellant. This is sustained by all these cases that I have heretofore cited. [1] 2. Miss Fuller was a witness to impeach Miss Simpson. Miss Simpson denied she ever had intercourse with appellant or any one else. Miss Fuller testified that some three or four years prior to the trial of this case Miss Simpson told her that she had intercourse with Harry Self three times on one trip. The state then introduced some witnesses by whom it proved that Harry Self had testified in the county court that he had never seen anything improper in the conduct of Miss Minnie Simpson. The court admitted this over the many objections urged by ap So in this case the basis of the prosecution was that appellant committed perjury in the county court in a trial where Ethridge was charged with the slander of Miss Simpson by calling her a "damned whore." It was upon this issue, if upon any issue in the county court, that that case was tried, if, in fact, it was tried. The information and complaint in the county court were introduced in evidence, but these are all the proceedings of the county court which were introduced. No wit-pellant. This was error. This was not imness testified in this case that Ethridge ever peaching testimony so far as Miss Fuller was made any such statement. The entire record concerned. She had not stated anything one is singularly and strangely silent upon that way or the other what Self had said to her. question. If it was proved in the county She had testified, however, that Miss Simpcourt that Ethridge made the statement, and son had informed her that she had interthat in support of his contention, or the course with Self. Self was not produced as truthfulness of his statement imputed to him, a witness, nor offered to be produced as a appellant appeared and testified that he had witness, although he could have been had had intercourse with Miss Simpson, his tes- before the court, but even had he been before timony would be material, because it went the court, he could not have impeached Miss directly to the issue. If Ethridge made that Fuller. No predicate had been laid for it, statement, it should have been proved on the and no conversation was shown or attempted trial of this case in order to show the ma- to be shown that ever occurred between them. teriality of appellant's testimony in that he It was hearsay evidence pure and simple, stated he had had intercourse with Miss and to make the error the more glaring the Simpson. If Ethridge made no such state- court verbally instructed the jury that this ment as charged in the information, then testimony was admitted upon the question of the credibility of Miss Fuller. By no possi- | from. We do not think it was necessary to ble legal construction could it affect the tes- show in this case whether or not Ethridge timony of Miss Fuller. Judge Harper, in the was guilty of the slander of Miss Simpson. Reed Case, supra, holds this to be error, That issue was tried and disposed of in and correctly so, and it is unnecessary to dis- the county court, and on appeal to this court cuss this further. In this connection it might the judgment was affirmed. Ethridge v. State, be stated they were permitted to prove that 169 S. W. 1152. And it was not proper nor Self had testified in the county court that he necessary to determine in this case whether had never had intercourse with Miss Simp- or not Ethridge used the language alleged, son. This was a part of the same matter, and whether or not he was guilty of slander. and it was erroneously admitted under what Appellant was on trial under an indictment has been said. in which he was charged with having perjured himself by swearing falsely on that trial, and the issue on this trial was whether or not he had in that trial sworn to a certain state of facts, and, if so, was his testimony false and material to the issue then on trial. The indictment in this case alleged: 3. Another complaint is urged against the admission of testimony by the state, over proper objection, that some of the witnesses had attended church gatherings and social functions which Miss Simpson also attended. The court seems to have admitted this testimony on the theory it tended to show the extent and character of knowledge possessed by witness as to general reputation of Miss Simpson. We do not believe this was admissible. The state introduced evidence of good character and reputation of Miss Simpson, but this character of testimony was not admissible for that purpose, and upon another trial it should not be permitted to go to the jury. 4. Another bill complains that the court erred in permitting Miss Simpson to testify that she submitted to an examination by some physicians to determine the fact that she was a virgin. The testimony of the physicians was admitted, and Miss Simpson also testified that the examination was made. The physicians testified as to their conclusion or opinion about that question favorably to the state, and the state was permitted to show by the girl that she willingly underwent or submitted to the examination by these doctors. This ought not to have been admitted. Her willingness was a condition of the mind on her part which ought not to be permitted to influence the jury against the defendant. He was in no way responsible for the condition of her mind and knew nothing of it. It was not a fact to be considered by the jury in passing on appellant's attitude of guilt or innocence, and was not a circumstance to be weighed against him. It was in the nature of a self-serving statement and act or mental condition upon the part of the witness unknown to appellant and which could be in no way binding on him. There are other questions in the case of more or less moment, some of which the writer thinks reversible, but my Brethren have taken the other view, and I do not care to write further in this opinion. "That Ernest Cox, on or about the 21st day of April, one thousand nine hundred and fourteen (1914), and anterior to the presentment of this indictment, in the county of Taylor and state of Texas, did then and there unlawfully before a regular term of the county court of Taylor county, Tex., holden in and for said county, and then and there in session in said county, Hon. E. M. Overshiner, judge of said court, presiding, and in a certain criminal judicial proceeding, of which the said court then and there had jurisdiction, wherein the state of Texas was and wherein Henry Ethridge was duly charged plaintiff and Henry Ethridge was defendant, by information with the offense of slander spoken of and concerning one Minnie Simpson in the following language, to wit: 'I would not be caught in daytime with that girl for $1,000. She is nothing but a damned whore.' And wherein issue was duly joined between the said state of Texas and the said Henry Ethridge came on to be tried in due form of law, and was then and there tried before the said judge and a jury in that behalf duly sworn, and the said Ernest Cox then and there appeared as a witness in behalf of the said Henry Ethridge, defendant, and was then and there duly and legally sworn, and did take his corporeal oath before the said court and jury as a witness to testify in said cause, which said oath was then and there required by law and necessary to the ends of public justice, and which said oath was then and there administered to him, the said Ernest Cox, by Hon. E. M. Overshiner, judge of said court as aforesaid, then and there having sufficient and competent authority, under the law, to administer the said oath to the said Ernest Cox in that behalf, and that upon the trial of said issue so joined be tween the said parties aforesaid it then and there became and was a material question and inquiry whether or not the said Minnie Simpson was a virtuous and chaste woman, and whether or not the said Henry Ethridge had spoken the truth of and concerning the said Minnie Simpson, and it then and there became and was a material question and inquiry whether or not the said Ernest Cox had sexual intercourse with the said Minnie Simpson behind her father's store in Potosi, and the said Ernest Cox, being so sworn as aforesaid, then and there, on the trial of said issue, upon his oath as aforesaid, did falsely, willfully, and deliberately, before the Hon. E. M. For the errors indicated, the judgment is Overshiner, judge as aforesaid, and before the reversed, and the cause remanded. PRENDERGAST, P. J., and HARPER, J. (concurring). [2-4] We agree to the reversal of this case on the grounds stated in the Reed and Cutbirth Cases this day decided, but we do not agree to the remainder of the opinion jurors so sworn as aforesaid, depose, state, and testify, amongst other things, in substance and in effect following, that is to say: That he, the said Ernest Cox, had had sexual intercourse with the said Minnie Simpson behind her father's store in Potosi, thereby intending and meaning that he, the said Ernest Cox, had had sexual intercourse with the said Minnie Simpson, the said alleged slandered female, and that |