The opinion of the court was delivered by
Bjrewer, J.:„ T , .. record.
a. Materiality of testfmonyj6
*1614. when evitimeaniplace is prima facie material. *160Defendant was convicted in the district court •of Franklin county of . perjury. From that conviction he appeals to this court. He complains of the instructions, and .that the verdict was not supported by the evidence. It may be doubtful whether the instructions are properly before us. They are not incorporated into any bill of exceptions. They were not excepted to. A series of some sixteen instructions, signed by the district judge, appears, which the clerk says in the transcript were given on the,trial. The certificate of the ■clerk at the close of the transcript is, that it is a copy of “all the pleadings and proceedings filed in and had by the court,” etc. In civil cases the statute seems to provide that instructions reduced to writing and signed by the judge shall, when filed, become a part of the record. Civil code, §§275, 276, p. 682. But in criminal cases it simply declares that they shall be filed among the papers of the cause. Criminal code, § 236, p. 858. But we do not decide this question, as an examination of the transcript, as it is presented, discloses aro error affecting the substantial rights of the> defeaidant. The poiart añade on the instructions is, that the court left with the jury the materiality of the alleged false testimony, when he should have decided it hianself, and instructed the jury that it was, or was not, material. That on a trial for perjury the question of the materiality of the alleged false testimony is one of law for the court, and irot oire of fact for the jury, is as a general rule, true. Whether it ever be otherwise, we car-e not to inquire; for’, coarcediarg that the court erred in submitting the question to the jury, still the error is not, in *161this case, one that has worked injury to the substantial rights of the defendant. The jury by their verdict in effect found that the alleged false testimony was material. An examination of the testimony shows that such finding was correct, and that the district court would have been compelled so to charge. If the court had charged that it was material, the jury would have been bound to have followed such instruction, and found accordingly. Without such instruction they have thus found. The result is the same, either way. How then has the defendant been prejudiced? It is claimed however in the brief of defendant that it was not shown that this alleged false testimony was material. The facts are these: The perjury charged was on the trial of this same defendant, on a previous charge of obtaining money by false personation and representations. That offense was charged to have been committed on the 7th day of June 1869. Defendant on that trial was sworn as a witness in his own behalf, and testified that he was not at / Ottawa, the place of the offense, on that day, but was absent in the Indian Territory from sometime in the middle of May to the first of August. Of course, if true, this proved an alibi. But it may be said any other time within the statute of limitations would have been good under the information, and it does not appear that the witnesses upon that trial fixed the time of the transaction as of the day charged in the information. But it does appear, from two witnesses on this trial, William B. Ayers and Frank Edwards, that the time was the 7th of June, and it is nowhere intimated that any other than that day was named on the former trial. The case stands thus: An information charges a certain crime at a certain place on a certain day. The defendant swears that on that day he was in a different and remote place. Prima facie that is material testimony.
*1626. irregularity in criminal trial; effect of. *161It is claimed that the verdict was contrary to the evidence. Upon this only one point requires any notice. On the trial of this, the perjury case, the information charging the obtaining money by false personation was offered in evidence, and *162also the journal entry of the trial which recited ° that the state appeared by the county attorney^ the defendant in person and by attorneys, that an application for continuance by defendant was made and overruled, that the parties then announced themselves ready for trial, the impanneling of the jury, the trial and verdict. There was no record of arraignment, waiver, or plea. Hence it is said no issue is shown to have been made, and therefore no legal trial. We do not consider this well taken. . Suppose without plea, a trial is had, and verdict of not guilty returned: could the defendant ever be retried? Has he not been in jeopardy ? The question presented is not, whether proceeding to trial without plea is error sufficient to require the setting aside of a verdict of guilty upon motion. But the question is, does such omission make the attempted trial wholly void? Whether it be an error of which a defendant convicted, could avail himself on appeal, wq do not care to inquire; but we cannot hold that it makes -the whole proceedings of the trial a nullity. These being the only questions of importance presented, the judgment must be affirmed.
All the Justices concurring.