Criminal Law—Perjury—Instruction as to Province op Jury.— Upon a trial for perjury, an instruction that it was for the jury to determine whether defendant gave the testimony which the indictment charges he did give, or any portion of it; that such testimony was false—that is, whatever testimony he gave in that action, if he gave any of such testimony; that the testimony he did give, or some portion of it, was false, that the defendant, at the time he swore to such testimony, knew it to be false; and that the testimony so alleged to be false was material to the issue— taken as a whole, could not give the jury to understand that they could convict the defendant for any false testimony other than that charged in the indictment.

Id.—Materiality op Testimony—Mixed Question op Law and Pact— Harmony op Instructions.—Whether testimony given upon the trial of a cause is material to the issues then before the court is a question of law to be determined by the court; but, as is sometimes the case, especially upon a trial for perjury, the materiality of the testimony will depend upon the existence of other facts; and if these facts are controverted, their existence must be determined by the jury; and an instruction to them that the existence of these facts would, as matter of law, render the testimony material, and that they must so find, is in harmony with the instruction that for the purpose of reaching a verdict, they must determine whether it is material.

Id.—Province op Court and Jury.—A jury is at all times required, in rendering their verdict, to apply the facts shown in evidence in accordance with the rules of law given by the court; but, in so doing, the verdict is none the less rendered by the jury.

Id.—Direct Evidence op Perjury.—Upon a trial for perjury, direct evidence thereof by two witnesses, or by one witness with corroborating circumstances, is not limited to a denial in the. very words of the testimony given by the defendant, but includes any positive testimony to a contrary state of facts from that sworn to by him on the former trial, or which is absolutely incompatible with his evidence or physically inconsistent with the facts so testified to by him.

Id.—Instructions—Validity op Former Information por Forgery.— Where the, perjury is charged to have been committed upon a former-trial of the defendant under an information for forgery of a telegraphic message, an instruction requested by the defendant as to the insufficiency of the information for forgery was properly refused. Whether that information was defective or not was a question to be determined by the court in which that trial was had.

Id.—Instruction as to Materiality op Evidence.—Where the defendant was charged with perjury, in falsely testifying upon the former trial for forgery concerning the time and place of the execution and delivery of two telegrams offered in evidence upon that trial, the court properly refused a requested instruction to the effect that inasmuch as it was showu at that trial that the defendant did not send the telegraphic message charged to have been forged, but merely furnished it to the operator to be sent by telegraph, it was not material to know when and where the telegrams herein considered were written.

Id.—Objection to Indictment for Two Charges op Perjury— Waiver—Failure to Demur.—Without determining whether the indictment for perjury committed in swearing falsely to the place where such two telegrams were written, and also for perjury committed in swearing falsely that they were delivered to a person named at the same place, is or is not objectionable as charging two offenses, an objection on that ground appearing upon the face of the indictment is waived by failure to make it by demurrer.

Id.—Testimony op Wipe Given upon Former Trial—Absence op Objection—Evidence op Reporter—Where the testimony of the wife of defendant was given upon the former trial for forgery without objection, and was proved by the evidence of the reporter on such former trial, given upon the trial of the charge of perjury, also without objection, no error was committed in such proof. Furthermore, the testimony so given upon the forgery trial by the wife of the defendant, not objected to by him, was admissible against him upon the trial of the charge of perjury, committed in the forgery case, so far as it would tend to show the materiality of the testimony given upon the trial for forgery, and made the basis of the charge of perjury. (Opinion of supreme court, on petition for transfer of cause.)

Id.—Previous Conviction of Felony—Insufficient Showing—Judgment-koll—Admission upon Former Trial.—A charge of a previous conviction of a felony, with the charge of perjury, does not appear to be supported by a sufficient showing, where a judgment-roll offered in evidence is not set forth in the bill of exceptions, and it contains no recital of its character; nor can it be sustained by the testimony of the reporter of a mere admission of the defendant, made upon the former trial of the forgery charge, that he had been convicted upon a prior charge of felony at a different date from that of such judgment-roll. His former naked admission of the fact, being extrajudicial, in relation to the present case, notwithstanding it was under oath, cannot establish that element of the present indictment.

Id.—Verdict of Former Conviction Severable.—The unsupported verdict of a prior conviction of felony is severable from that portion of the verdict finding the defendant guilty of perjury. The verdict for a prior conviction may be disregarded, and judgment entered against the defendant upon that portion of the verdict which was sustained by the evidence.

Id.—Effect of Sentence—Presumption—Judgment not Sustainable.—Although the sentence for the shortest term for which the defendant could be imprisoned, if the charge of prior conviction had been established, might have been for the same term upon a verdict merely finding him guilty of perjury, yet it cannot be assumed that the court disregarded any portion of the verdict in fixing the term of imprisonment, and its judgment in that respect cannot be sustained.