The United States, by her attorney, Hon. Horace Speed, has filed a petition for rehearing in the above entitled cause.
It is insisted by counsel for the Government that certain language used by the court in deciding said case, wherein it was said that "false swearing is only indictable when the false testimony is material to some question properly before the court and involved in the issues in the case in which the alleged false testimony was given," is too narrow and liable to be misconstrued, as meaning that testimony to be material must be relevant to the issues made by the pleadings. We do not think the language used susceptable to such construction; yet, in order to avoid any such interpretation, we desire to disclaim any purpose to so promulgate the law. It was not the intention of the court to hold that matter testified to, in order to be material, must be relevant to the issues made by the pleadings, but if it is material to any question, which properly arises in the trial of the cause, either direct or collateral, it may be made the basis of a criminal prosecution for false swearing, and when a witness testifies to any material *Page 352 matter, his credit then becomes an issue, and any evidence affecting his credit is material matter. Numerous issues of fact may arise in the course of a judicial trial, which are only collateral to the main issues, and yet may well be said to be properly in the case, and within the issues in the case, and this is the broad sense in which the language of the court was used. In any event, this question could not affect the case at bar.
It is further contended by counsel for the government, that this court erred in its application of the law to the principal questions involved in this case.
Counsel insists, that if a witness is improperly permitted to testify to immaterial matters, and testifies falsely on cross-examination, to matters affecting his credit, that such false testimony is a proper subject and basis for an indictment for perjury.
A number of authorities are cited in support of this proposition. We have examined such of the authorities cited as are at our command, and find that they relate to the competency of the witness, rather than the materiality of the matter sworn to.
If a witness is not competent, and yet is permitted to testify to matter which is material, the testimony will have as much weight with the jury or court as if he were competent. And if his testimony be false, the authorities cited say that perjury may be based upon it.
The author of Bishop's New Criminal Law cites most of the adjudicated cases, both English and American, relating to the crime of perjury, or false swearing, and we find this work admirable authority in criminal matters.
In § 1019, Vol. 2, Bishop's New Criminal Law, it is said, "though a witness is in law incompetent, if in fact *Page 353 the court admits him, he commits perjury when what he testifies to is wilfully false."
In stating the law in reference to materiality of testimony, it says:
"If the testimony of the witness can have no weight in law as affecting the issue, then, though, false, it is not perjury, because immaterial."
Again it is said, in § 1030:
"For false swearing to be perjury, the thing sworn to must be within and pertinent, or material, to the issue, or question in controversy."
In § 1032, the law is further stated as follows:
"In addition to the primary and direct materiality, whatever evidence tends to influence the result on the direct or any collateral issue is material within our present doctrine but what is not thus adapted to affect any result is not thus material."
In § 1036, the rule is aptly stated thus:
"Whenever the court has admitted evidence, however erroneously, the decision has become to the jury the law of the occassion; they cannot overrule the judge on the question, and refuse to be influenced by what the witness says. If now whathe swears to is adapted to influence them, and is corruptly false, it is perjury; otherwise, if it can have no effect on their verdict."
Then the true rule deducible from the foregoing, and the authorities cited in support thereof, is,
"Was the alleged false testimony of such a character as to influence the minds of the jury in arriving at a correct verdict, or did it in any manner affect their finding?"
If it is of such a character to influence or affect the verdict, then it is material matter. If not, it is immaterial and, however false it may be, it is not perjury.
Applying these rules to the case at bar, we see no reason for departing from the opinion we have heretofore rendered. *Page 354
It is clear to us, that the evidence in chief of Stanley, in the Blackburn case, was not adapted to in any manner affect the verdict of the jury in that case; that it was not relevant, or material, to any issue, direct or collateral.
Then, inasmuch as he testified in chief to nothing that would in the least influence the minds of the jurors, or affect their verdict, his credit was not in issue. It was immaterial whether he testified truly or falsely in chief, and if his credit was not in issue, then the whole cross-examination was immaterial, and did not relate to any material matter in the case.
A re-examination of the record, argument and authorities confirm us that our original opinion was correct, and that the motion for rehearing should be overruled.
Motion for re-hearing overruled.
All the Justices concurring.