
    STATE OF NORTH DAKOTA v. GUSTAVE A. FALK.
    (159 N. W. 10.)
    Perjury — false testimony — civil action — during trial of — issues — no proof of — testimony — materiality of — conviction for — immaterial testimony — will not stand — advised verdict — motion for — error raised by — instructions — exceptions.
    A prosecution for perjury for alleged false testimony given by defendant during trial of a civil action. There was no proof made of what the issues were in such civil action. Hence, there was no evidence from which to determine the materiality of such false testimony. A conviction of perjury cannot be sustained upon immaterial testimony, or sustained without proof of materiality of the false testimony upon which the prosecution is predicated. Such error was raised by motion for an advised verdict of acquittal, again on exceptions to instructions.
    Note. — Authorities on the question of whether a charge of subornation of perjury may be based on false testimony which is immaterial are collected in a note in 25 L.R.A. (N.S.) 120, which may be of interest in connection with this case.
    Opinion filed July 26, 1916.
    Appeal from a judgment of conviction of perjury entered in the District Court of Morton County, Hanley, Judge.
    Reversed and a new trial granted.
    
      A. T. Faber, for appellant.
    The essentials of the crime charged are: the taking of the oath, in a proceeding before a competent tribunal, in cases in which an oath may be administered; giving testimony, and, wilfully and contrary to said oath, stating any material matter which he knows to be false. Comp. Laws 1913, § 9366; Hitesman v. State, 48 Ind. 473;'People v. Simpton, 133 Cal. 367, 65 Pac. 834; State v. Divoll, 44 N. IL 140; United States v. McConaughy, 33 Ped. 168; Brown v. State, 91 Wis. 245, 64 N. W. 749; 16 Enc. Pl. & Pr. 329; State v. Scott, 78 Minn. 311, 81 N. W. 3.
    The information must contain a positive declaration or averment that defendant was duly sworn to testify truthfully. People v. Simpton, 133 Cal. 367, 65 Pae. 834; People v. Dunlap, 113 Cal. 74, 45 Pac. 183.
    All of the elements specified in the statute must be alleged. State v. Webb, 41 Tex. 67; Juaraqui v. State, 28 Tex. 625.
    The information must allege in general terms that certain issues were joined and on trial in the proceeding in which the alleged perjury was committed. It is not sufficient to allege that the issue to be tried was material. Guston v. People, 61 Barb. 35; People v. Howard, 111 Cal. 655, 44 Pac. 342; Rosebud v. State, 50 Tex. Crim. Rep. 475, 98 S. W. 858; McMurtry v. State, 38 Tex. Crim. Rep. 521, 43 S. W. 1010; Buller v. State, 33 Tex. Crim. Rep. 551, 28 S. W. 465.
    • The name of the court must also be alleged. 3 Whart. Crim. Law, 2221; State v. Ayer, 40 Kan. 43, 19 Pac. 403; State v. Oppenheimer,. 41 Tex. 82.
    The period of time in which the alleged false testimony was material to the issue on the trial upon which the alleged perjury was committed. This is essential so as to apprise defendant of the charge against him. People v. Vogt, 156 Mich. 594, 121 N. W. 293; People v. Maxwell, 118 Cal. 50, 50 Pac. 18; State v. Webb, 41 Tex. 67; Gibson v. State, 44 Ala. 17; State v. Lea, 3 Ala. 602; State v. Raymond, 20 Iowa, 582; Eitch v. Com. 92 Va. 824, 24 S. E. 272; Burns v. People, 59 Barb. 531.
    The state must establish what the material issues were in the case in which the false testimony is alleged to have been given, in order to show the fact that the false testimony was material to such issue. 2 Bishop, Crim. Proc. 3d ed. § 933 ; People v. Ah Sing, 95 Cal. 657, 30 Pac. 797; Bledsoe v. State, 64 Ark. 474, 42 S. W. 899; 3 Greenl. Ev. § 197; State v. Aikens, 32 Iowa, 403; Wood v. People, 59 N. Y. 117; McMurry v. State, 6 Ala. 324; Heflin v. State, 88 Ga. 151, 30 Am. St. Rep. 147, 14 S. E. 112; People v. Lem You, 97 Cal. 224, 32 Pac. 11; People v. Macard, 109 Micb. 623, 67 N. W. 968.
    • An instruction is erroneous where it assumes material facts to be proved of which there is no evidence or upon which the evidence is contradicted or controverted. 12 Oyc. 601 (XIV) ; People v. Matthai, 135 Cal. 442, 67 Pac. 694; Densmore v. State, 67 Ind. 306, 33 Am. Rep. D6; State v. Bige, 112 Iowa, 433, 84 N. W. 518; Com. v. Smith, 153 Mass. 97, 26 N. E. 436; State v. Peltier, 21 N. D. 188, 129 N. W. 451; Territory v. O’Hare, 1 N. D. 30, 44 N. W. 1003; State v. Barry, 11 N. D. 428, 92 N. W. 809.
    Wm. Longer^ State’s Attorney, Henry J. Linde, Attorney General, Francis J. Murphy and H. B. Bitzing, Assistant Attorneys General, for respondent.
    No information or indictment is insufficient, nor can the trial judgment or other proceedings thereon be affected by reason of a defect or impression in matters of form which does not tend to affect the proceedings or the substantial rights of the defendant upon the merits. Comp. Laws 1913, § 10694; State v. Tolley, 23 N. D. 284, 136 N. W. 784.
    It is not-necessary in an information to state presumptions of law, nor matters of which judicial notice is taken. Comp. Laws 1913, § 10695.
   Goss, J.

Defendant was informed against and convicted of perjury committed during the trial of a civil action. He appeals, assigning many errors, only one of which is necessary to' be considered. To charge perjury, it was necessary to allege the materiality of the false testimony given. To establish materiality, proof of the issues under which the testimony was offered was essential. But there is no proof of what the i.ssues were in the trial during which the alleged false testimony was given, from which to determine materiality of the evidence given. This failure of proof was raised by motion to advise a verdict of acquittal, and again on exceptions to instructions. The trial court instructed: “And in determining whether or not the testimony was material, as stated before, the question you should bear in mind is what the issues were in the former trial, what the complaint was in the former trial and what the issue was that was being tried.” And “the •question that you are trying is, . . . whether or not, as such witness, Falk testified falsely to any material fact in that case, and if you find beyond a reasonable doubt from the evidence that he did so testify -falsely to a material fact, and that he knew he was testifying falsely at that time to such material fact, and knew it was material, then, under the information and under these instructions, you should find the defendant guilty.” The court also instructed upon materiality, when testimony would be material and when it would not be. The exception "taken to these instructions is that “the court erred in assuming without -any evidence that the state had established what the material issues in the former trial were upon which the alleged perjury was assigned.”

The alleged perjury was committed in a civil action, and one in which the information charges that it was a material issue to establish that a common nuisance was kept and maintained at a certain place by the keeping of intoxicating liquors for sale there as a beverage, or by permitting people to there resort for the purpose of drinking intoxicating liquors; and the testimony of Falk wherein he denied seeing beer or seeing others drink beer there, the alleged false testimony, is set forth. The materiality of these statements is apparent from the face of the information, and therefore materiality is probably sufficiently alleged (Comp. Laws 1913, § 10700; Fitch v. Com. 92 Va. S24, 24 S. E. 272; 30 Cyc. 1435; Wharf. Crim. Law, 11th ed. § 1549), although it is in bad form and open to question. See People v. Vogt, 156 Mich. 594, 121 N. W. 293; State v. Mumford, 12 N. C. (1 Dev. L.) 519, 17 Am. Dec. 573; and United States v. Robinson, 4 Dak. 72, 23 N. W. 90. But in proving its case the state wholly overlooked offering proof of what the issue was in said nuisance action. It offered in evidence only the summons, complaint, and injunctional order therein issued, without putting in evidence the answer or establishing whether any allegation of said complaint was controverted or was in issue on trial in said action. The proof as to issues on trial in the civil action is as indefinite as though the complaint therein was not in evidence. For all that appears upon this record every syllable of testimony given by Falk may have been upon matters concerning which there was no issue and no necessity of proof whatever. And it seems that this was not entirely an oversight, as the clerk of the court was called by tbe state and asked to produce certain records in said civil action, and gave this testimony:

Q. Where are the records now ?

A. The records were sent down to justice court in another case and I have not gotten them back from him.

Subsequently he found a portion of them, the summons and complaint, and upon his testimony as a basis, they were offered and received in evidence. But the way in which the issue arose upon which the alleged false testimony was given is wholly unproven. In fact, there was no proof whatever of that issue on trial or that there was any issue for trial or tried. So far as the record is concerned it simply proves that certain false testimony was given, without any proof of how it was material or to what extent it was material or necessary, or proof of its materiality upon any question determined in the civil action. Its materiality then is wholly left to speculation, and, as stated in the exception to the court’s instruction, the court “assumed without any evidence that the state had established what the material issues in the former trial were upon the alleged perjury so assigned.” It is almost elementary that any allegation that is necessary to be made in a criminal information is also necessary to be proven to support a conviction thereon. The text books .and cases are'in accord upon the necessity of proof of the materiality of the alleged false testimony; and to prove materiality it is necessary therefore to prove as a fact on the trial for perjury so much of the issue as is necessary to establish such materiality. “On a prosecution for perjury the materiality of the testimony may be shown by introducing all or so much of the pleadings in the action as show the issues, together with proof of such facts as tend to show the testimony to be on a material issue.” 30 Oyc. 1446-3?. See also Oomp. laws 1913, § 10700. And again, “To sustain an indictment for perjury there must be proof that the false testimony was material to the issue, unless by statute materiality is rendered unnecessary. The record of the case or a duly authenticated transcript thereof is necessary for this purpose, and tho fact that the testimony was received is not, standing alone, sufficient. . . . In no event can the materiality of the testimony or assertion assigned as perjury be established by the opinions of witnesses.” 30 Oyc. 1450. “In a trial at nisi prius on an indictment for perjury the postea must be produced by the plaintiff. At common law generally the entire record should be put in evidence.” Whart. Grim. Law, 11th ed. § 1590. “To sustain a conviction for perjury it must appear, either upon the face of the facts set forth in the indictment that the matter sworn to upon which the perjury is assigned was material, or it must be expressly so averred and the materiality must he proved upon the trial.” Syllabus in Wood v. People, 59 N. Y. 117. The opinion in that case in part reads: “The materiality must be proved on the trial or there can be no conviction. A false oath upon an immaterial matter will not support a conviction for perjury.” The same is the holding in People v. Peck, 146 App. Div. 266, 130 N. Y. Supp. 967, affirmed by court of appeals in 206 N. Y. 669, 99 N. E. 1114. The opinion in part reads: “The indictment does not in words charge that any or all of the statements therein alleged to have been made by defendant were material, or were of and concerning a matter material in the proceeding then being conducted by the examiner. It is not necessary that the indictment so charge, provided the facts which are set forth therein are sufficient in themselves to show that the sworn statements alleged to be false were material. But the materiality must be shown in the indictment itself, either by direct statement or by the facts stated therein.” And from the syllabus: “Wilfully testifying falsely to an immaterial fact is not perjury.” Another leading case illustrative of the failure of proof in the case at bar, and from the Eew York court of appeals, is People v. Teal, 196 N. Y. 372, 25 L.R.A. (N.S.) 120, 89 N. E. 1086, 17 Ann. Cas. 1175. The opinion is in a case for subornation of perjury, but the rule is the same, as to suborn perjury, perjury must have been committed. In People v. Teal, the false testimony was procured to have been given in a divorce action by Helen K.. Gould v. Frank I. Gould. The complaint charged defendant with an act of adultery with a party named, and as occurring in Canada. The alleged false testimony offered in proof of said complaint described an alleged act of adultery with a different person, and in New York city. The party procuring this testimony to be given was convicted of subornation of perjury. The opinion by Justice Werner states: “The bare statement of these facts, unrelated both in pleading and in circumstance, is sufficient to draw attention sharply to the utter irrelevancy, incompetency, and immateriality of the false testimony solicited to the issue tendered by tbe complaint in Gould v. Gould. . . . From time immemorial tbe common law has made tbe materiality of false testimony an essential ingredient of tbe crime of perjury. From their earliest beginnings our statutes bave always, embodied that rule. Our penal laws, but recently recodified, bave continued it. That, in short, is tbe unquestioned law of this state. . . - Subornation of perjury can only be predicated upon perjury committed.. . . . That crime in tbe case at bar is subornation of perjury, and. could only bave been committed if tbe'false testimony, if given, bad constituted perjury. It seems to follow therefore that if there could bave been no subornation of perjury, there was in fact no attempted subornation of perjury within tbe meaning of tbe statute. If tbe person actually giving false testimony is not guilty of perjury, tbe person through whose procuration tbe testimony is given cannot be guilty of subornation of perjury. . . . . If this reasoning is sound, it is clear that tbe question before us resolves itself into tbe inquiry whether tbe actual giving of tbe false testimony set forth in the indictment would bave constituted tbe crime of perjury. We bave already said that tbe false testimony which tbe defendant attempted to procure was irrelevant, incompetent, and immaterial to tbe only issue presented by tbe complaint in Gould v. Gould. We may pass without discussion the elements of irrelevancy and incompetency. These could bave been waived. They are, moreover, not essential to the commission of perjury as defined in tbe statute. It is different, however, as to materiality. If false testimony is not material, it cannot support an indictment for perjury. Tbe testimony upon which a charge is predicated must be-false fin any material matter.’ Tbe testimony solicited of MacCauslan was not false in any matter material to tbe issue in Gould v. Gotdd, and we do not see how tbe conviction in tbe case at bar can be sustained.” See also tbe several recent perjury cases from Texas of Reed v. State, — Tex. Grim. Rep. —, 174 S. W. 1065; Cox v. State, — Tex. Crim. Rep. —, 174 S. W. 1067; and Jones v. State, — Tex. Crim. Rep. —,. 174 S. W. 1071. If a conviction cannot be sustained where tbe record discloses tbe false testimony to be immaterial, certainly conviction for-perjury cannot be sustained here where -the record wholly fails to disclose its materiality to tbe inquiry upon which it was given. All proof' of bow and in what respects any of these false statements were material'. to the issues involved in tbe civil action is wholly lacking. Under the record made it can be assumed that defendant wilfully testified falsely, but that does not establish his guilt of the crime of perjury. He could have admitted the giving of such false testimony, but still have been entitled to have the issue of its materiality passed upon by the jury, and if found immaterial in fact, be acquitted of perjury. No crime is therefore proven. The conviction therefore upon insufficient testimony is set aside and the case is remanded.  