
    No. 9721.
    The State of Louisiana vs. Ernest J. Schlessinger.
    In an indictment for perjury it is not essential that the authority and jurisdiction of the court administering the oath should, be expressly avoired, if they sufficiently.appear from the facts set out.
    When the prosecution for perjury is in the same court in which the peijury was committed, it may take judicial cognizance of its own jurisdiction, if the indictmont sufficiently sets forth the facts.
    Although the materiality of the matter sworn to be not expressly averred, yet if the indictment sets forth the facts from which the materiality appears, that is sufficient.
    APPEAL from the Criminal District Court for the Parish of Orleans. Homan, J.
    
      M. ,T. Cunningham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee: '
    I.
    The question of the jurisdiction of the court is merely a matter of inducement, and according to the universal rule of criminal pleading it will be sufficient either to charge in words that the officer bad jurisdiction, or to aver facts from which the jurisdiction would in law appear, both not being required. 2 Bish Or.’Proc. §§ 910, 904.
    The general rule as to jurisdiction is Chat nothing shall bo intended to be out of tho jurisdiction of a superior court bub that which, specially appears to be ao. Archb. Or. Pr, and PI., 1721. Pomeroy’s notes. And if it appear prima facie that the court had jurisdiction of the matter, the burden of proving the contrary devolves upon the prisoner. 3 G-reenl. on Ev., 185.
    Even where the court is an inferior one, if it derives its jurisdiction from a public statute, it is sufficient to describe the proceeding so as to biing it within the statute; for the court which tries the perjury must take judicial notice of the jurisdiction. 3 Arch 594.
    The Criminal District Court is a superior court vested with general criminal jurisdiction. An indictment which sets out that issue was joined between the State and certain defendants on a charge of murder brought against them before the Criminal District Court in a prosecution duly and regularly apportioned by lot to section B thereof, is a sufficient aveiment of facts to authorize judicial notice to be taken of its jurisdiction in the case.
    It is no longer necessary in an indictment of perjury fo set out “ bill, answer, information, indictment, declaration or any part of any record or proceeding;” nor is it necessary to set out “ the commission or authotity of a court or person before whom the perjury was committed. B. S. 858.”
    II.
    Materiality may he pleaded in one of two ways. It may either bo averred on the face of the indictment that the matter alleged to he false was material, or the pleader may set out the facts from which its materiality will appear; and the latter is sufficient even where the bare averment of materiality is defective. 2Bish. Cr. Proc., § 931; 3 Whar. Or. Law, § 1304.
    The materiality of the matter sworn to must depend upon the state of the cause and the nature of the question in issue. Bose. Cr. Ev. 758. If the materiality evidently appears upon the record, as where the falsehood affects the very circumstance of innocence or guilt, express allegations of materiality may be omitted. 2 Bussel on Climes, 038; 2Chit. Cr. Law, 307; Hawk. P. C. b. 1. C. 69. S. 8.
    Where, npon a trial for murder, a witness deposes that he was present when the deceased and the accused met. and saw the deceased fir© two shots at one of the accused before the fire was returned by any of the persons present; and that the first two shots were fired by the deceased, — the materiality of the evidence appears from the facts and need not be averred in the indictment.
    
      Jas. 0. Walker for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The defendant appeals from a verdict and sentence for perjury committed by false swearing as a witness under oath in a certain case of State of Louisiana vs. T. J. Ford et al., then pending in the Criminal District Court for the Parish of Orleans.

A motion in arrest of judgment was filed on the grounds:

1st. It does not appear by the indictment herein, and it is not alleged, that the Criminal District Court for the Parish of Orleans was vested with jurisdiction to hear and determine the case of the State of Louisiana vs. T. J. Ford et al.

2d. The said indictment does not cliaige that the facts which the defendant is therein accused of having falsely sworn to were material.

..I-

Our Section 858 R. S. is a substantial copy of the first section of the English Statute, 23 Geo. 2. See 2d Bishop Cr. Proc. § 901.

The words “ averring such court or person to have competent authority to administer the same,” have been eliminated from the English law by statute, 14th and 15th Victoria, and under this latter such averment is no longer essential. 2d Bishop Cr. Proc. §§ 901, 902, 914, and notes.

But even under the former statute the courts have held it sufficient, even in absence of express averment, that the jurisdiction and authority should appear, from the facts set out. Id. § 914, and authorities.

Now, in the indictment here, it is averred that the cause of the State vs. T. J. Ford et al., which is described to be a trial for a certain murder, etc., was pending before Section B of the Criminal District Court for the Parish of Orleans, to which it had been regularly and duly apportioned by lot, etc. The contention of defendant is that these averments do not establish that the murder charged was committed in the parish of Orleans, and, therefore, omits an essential fact required to vest the court with jurisdiction. But when we consider that the prosecution for perjury was before the same court in which the perjury was committed, and that the cause referred to was in the same court, we think the court is authorized to take judicial cognizance of its own jurisdiction in said cause.

Thus we read in Archbold, that “where an inferior court derives its jurisdiction from a public statute, it is sufficient to describe the proceeding so as to bring it within the statute; for the court, which tries the perjury, will take judicial notice of the jurisdiction.” 3 Archbold, 594.

If the court may take judicial notice of anything, surely it may do so of-its own jurisdiction in a case which was pending before itself.

The facts charged are ample to enable the court to determine from the face of the record “whether they are sufficient to support a conviction of the particular crime and to warrant judgment;” and this accomplishes the full object of the requirement. 1 Starkie Cr. Pl. 73; Wharton Cr. Pl. and Pr. § 166; 2 Bishop Cr. Pr. § 904. See on this point: State vs. Newton, 1 Iowa, 160; Com. vs. Knight, 12 Mass. 274; Hallock vs. State, 11 Ohio, 400; People vs. Phelps, 5 Wend. 9.

Tn criminal matters technicalities are not to be disregarded; but they must be subjected to reasonable restraints and cannot be allowed to reduce the law to a mere “rhapsody of words.”

II.

Although the materiality of the matter sworn to be not expressly averred, yet if the indictment sets forth the facts from which the materiality appears, that is sufficient. 2 Bishop Cr. Proc. § 931; 2 Wharton Cr. L. § 1304; 2 Russell on Cr. 638; 2 Chitty Cr. L. 307.

This disposes of th.e point; for it is perfectly clear from the recitals of the indictment that the matter sworn to was material to the issues in the case. It is only by the most strained suppositions that the testimony might have referred to a different encounter between the same parties, that, the ingenious counsel of defendant seeks to impugn their materiality.

Judgment affirmed.  