the falsity of the material fact.52 It has also been held that a witness for the state in a case of perjury may testify as to what the defendant said in the former proceeding and may then say that it was false, and give the facts which conclusively show it to be false.53 § 3078. Motive or intent.-Evidence tending to show the motive or intent in taking the alleged false oath or giving the alleged false testimony is frequently important upon the question as to whether it was wilfully false and corrupt, and evidence has been held admissible to show animosity and malice in the defendant against the prosecutor; or that he had sinister and corrupt motives in giving the false testimony. Thus, where the charge of perjury was based upon a complaint made by the defendant of threats on the part of the prosecutor to do him some great bodily harm, requiring sureties of the peace against him, it was held that evidence was admissible, which showed that the real object of the defendant, in making that complaint, was to coerce the prosecutor to pay a disputed demand.55 And so it has been held that although the false testimony given in a cause was afterwards retracted on cross-examination, or a subsequent stage of the trial, yet the indictment will be sustained by proof that the false testimony was wilfully and corruptly given, notwithstanding the subsequent retraction.58 "But it must be clearly shown," says Professor Greenleaf,57 "to have been wilfully and corruptly given, without any intention, at the time, to retract it; for it is settled, that a general answer may be subsequently explained so as to avoid the imputation of perjury. Thus, where perjury was assigned upon an answer in chancery, in which the defendant stated that she had received no money; and it was proved, that, upon exceptions being taken to this answer, she had put in a second answer, explaining the generality of the first, and stating that she had received no money before such a day,—it was held, upon a trial at bar, that nothing in the first answer could be assigned as perjury which was explained in the second."58 It has also been held that the evil intent of the de 52 Anderson v. State, 24 Tex. App. 705, 7 S. W. 40. 53 Adams v. State, 93 Ga. 166, 18 S. E. 553; Heflin v. State, 88 Ga. 151, 14 S. E. 112, 30 Am. St. 147. 54 Rex v. Munton, 3 Car. & P. 498. also, Reg. v. Phillpotts, 3 Car. & 59 Rex v. Carr, 1 Sid. 418, 2 Keb. 336; 2 Russell Crimes 666 (5th Eng. ed., Vol. III, 97). The same general principle is recognized in, Rex v. Jones, 1 Peake N. P. 38; Rex v. Dow 60 fendant may be shown by evidence of other perjury than that alleged in the indictment, relating to the same oath and subject-matter, and this may be properly considered by the jury in determining the question of corrupt intent in swearing to the false matter upon which the defendant is charged.59 Evidence has also been held admissible which tends to show that the accused endeavored to induce a third person to give false testimony in the case in which he gave the alleged false testimony, or that the defendant charged with perjury endeavored to prevent and induce witnesses from testifying against the defendant in the case in which the false testimony was given.61 Deliberation and wilfulness, it is said, are essential elements of the crime of perjury and evidence which tends to prove such is admissible and goes to the very substance of the offense.62 It has also been held that a justice of the peace who conducted the preliminary examination of the case in which the perjury is alleged to have taken place, may testify as to the insolent conduct and language of the defendant while testifying before him. And where the defendant attempts to show that his affidavit or testimony was made by mistake, inadvertence or under agitation, the prosecution may usually show that the defendant made such false statement with premeditation.* § 3079. Materiality.-In an action for perjury there must be proof that the false testimony was material to the issue. The fact that it was false alone is not enough to convict, and false testimony will not be presumed to be material. A witness will not be permitted to give it as his opinion that the evidence was material, but this is left for the tribunal. The question of materiality is usually to 66 lin, 1 Peake N. P. 170; Rex v. Rowley, Ry. & M. 299. State v. Raymond, 20 Iowa 582. "Heflin v. State, 88 Ga. 151, 14 S. E. 112, 30 Am. St. 147. 65 05 Lawrence v. State, 2 Tex. App. 479; Rich v. United States, 1 Okla. 354, 33 Pac. 804; Wood v. People, 59 N. Y. 117; Nelson v. State, 32 Ark. 192. The mere fact that the testi "People v. Macard, 109 Mich. 623, mony was admitted has been held 67 N. W. 968. insufficient to show that it was ma Mason v. State, 55 Ark. 529, 18 terial. Commonwealth v. Pollard, 12 S. W. 827. Foster v. State, 32 Tex. Cr. App. 39, 22 S. W. 21. 04 Davidson v. State, 22 Tex. App. 372, 3 S. W. 662; but see, Mason v. State, 55 Ark. 529, 18 S. W. 827. Metc. (Mass.) 225; see also, Brown v. State, (Fla.) 36 So. 705. C6 Washington v. State, 23 Tex. App. 336, 5 S. W. 119; Foster v. State, 32 Tex. Cr. App. 39, 22 S. W. 21; Silver v. State, 17 Ohio 365. 69 .68 be determined as of the time when the alleged false testimony was given. Upon this question Professor Greenleaf says: "As to the materiality of the matter to which the prisoner testified, it must appear either to have been directly pertinent to the issue or point in question, or tending to increase or diminish the damages, or to induce the jury or judge to give readier credit to the substantial part of the evidence. But the degree of materiality is of no importance; for, if it tends to prove the matter in hand, it is enough, though it be circumstantial. Thus, falsehood, in the statement of collateral matters, not of substance, such as the day in an action of trespass, or the kind of staff with which an assault was made, or the color of his clothes, or the like, may or may not be criminal, according as they may tend to give weight and force to other and material circumstances, or to give additional credit to the testimony of the witness or of some other witness in the cause.71 And there 67 Rex v. Hailey, 1 Car. & P. 258; Bullock v. Koon, 4 Wend. (N. Y.) 531; People v. Lem You, 97 Cal. 224, 32 Pac. 11; see also, People v. Hitchcock, 104 Cal. 482, 38 Pac. 198; State v. Mooney, 65 Mo. 494; Reg. v. Phillpotts, 3 Car. & Kir. 135, 5 Cox Cr. Cas. 363; Rex v. Crossley, 7 Term R. 311, 315; State v. Whittemore, 50 N. H. 245, 9 Am. R. 196. Evidence that, in a corporation court having jurisdiction only of offenses committed in the city, on a trial for playing cards in the city, the defendant falsely swore that he had not seen or played in a game outside of the city has been insufficient to sustain a 'conviction of perjury, without evidence to show the materiality of the facts of which he testified. Pyles v. State, (Tex. Cr. App.) 83 S. W. 811. So, in a similar case it was held by the same court that evidence that the game of cards about which the defendant swore falsely was played outside of the city limits, would not support a conviction, in the absence of further proof showing that such false testi mony was material to the issue. Liggett v. State, (Tex. Cr. App.) 83 S. W. 807. 68 69 3 Greenleaf Ev., § 195. 89 2 Russell Crimes 600, (5th Eng. ed., Vol. III, 10); 1 Hawkins P. C., chap. 69, § 8; Rex v. Aylett, 1 Term R. 63, 69; Commonwealth v. Parker, 2 Cush. (Mass.) 212; Commonwealth v. Knight, 12 Mass. 274; Rex v. Prendergast, Jebb C. C. 64; see also, State v. Norris, 9 N. H. 96; Wood v. People, 59 N. Y. 117; Commonwealth v. Grant, 116 Mass. 17; State v. Park, 57 Kans. 431, 46 Pac. 713; Crump v. Commonwealth, 75 Va. 922; Hanscom v. State, 93 Wis. 273, 67 N. W. 419; State v. Hunt, 137 Ind. 537, 37 N. E. 409; 85 Am. Dec. 492, 493, note. 70 Rex v. Griepe, 1 Ld. Raym. 256; Reg. v. Rhodes, 2 Ld. Raym. 886, 890; State v. Hattaway, 2 N. & Mc. (S. Car.) 118; Commonwealth v. Pollard, 12 Metc. (Mass.) 225; see, Reg. v. Worley, 3 Cox Cr. Cas. 535; Reg. v. Owen, 6 Cox Cr. Cas. 105. fore every question upon the cross-examination of a witness is said to be material.72 In the answer to a bill in equity, matters not responsive to the bill may be material." But, while questions on cross-examination that go to the credit of the witness are generally considered material, the statement of Professor Greenleaf seems to be a little too broad, for if the evidence of the witness in chief is not material and the question on cross-examination does not go to the credit of the witness, it would not, ordinarily, be material.74 75 § 3080. Collateral matter.-Although the false oath or testimony must be material, it is not necessary that it should be material to the main issue or question. It may be sufficient if it is material to some collateral matter involved. Thus, it is said, that "a party not only commits perjury by swearing falsely and corruptly as to the fact which is immediately in issue, but also by doing so as to material circumstances which have a legitimate tendency to prove or disprove such fact." It has been held, for instance, that perjury may be assigned upon false testimony offered to procure the admission in evidence of a material document," upon a false affidavit for a continuance,78 upon false testimony tending to increase or diminish the damages, or upon false testimony affecting the credibility of a witness.80 And it makes no difference that the jury may not have 79 Vol. III, 10); Studdard v. Linville, 3 Hawks (N. Car.) 474; State v. Norris, 9 N. H. 96 "State v. Strat, 1 Murph. (N. Car.) 124; Reg. v. Overton, 2 Moo. C. C. 263, Car. & M. 655; Reg. v. Lavey, 3 Car. & Kir. 26; see also, State v. Hunt, 137 Ind. 537, 37 N. E. 409; Hanscom v. State, 93 Wis. 273, 67 N. W. 419. "Rex v. Melling, 5 Mod. 348; see also, Reg. v. Yates, Car. & M. 132; but compare, Silver v. State, 17 Ohio 365. "Stanley v. United States, 1 Okla. 336, 33 Pac. 1025; Leak v. State, 61 Ark. 599, 33 S. W. 1067; see also, State v. Brown, 68 N. H. 200. Jacobs v. State, 61 Ala. 448; Robinson v. State, 18 Fla. 898; State v. Wilson, 156 Ind. 343, 59 N. E. 932; Commonwealth v. Pollard, 12 Metc. (Mass.) 225; State v. Lavalley, 9 Mo. 834; Wood v. People, 59 N. Y. 117; State v. Brown, 79 N. Car. 642, 644; Dilcher v. State, 39 Ohio St. 130; 2 Bishop Cr. Law, § 1032; 2 Wharton Cr. Law, § 1277. 76 Commonwealth V. Grant, 116 Mass. 17; see also, Rex v. Griep, Holt 535, 12 Mod. 139, 1 Ld. Raym. 256. "Reg. v. Phillpotts, 5 Cox Cr. Cas. 363, 3 Car. & Kir. 135. 78 State v. Winstandley, 151 Ind. 316, 51 N. E. 92; see also, Sanders v. People, 124 Ill. 218, 222, 16 N. E. 81; State v. Bunker, 38 Kans. 737, 17 Pac. 651. State v. Norris, 9 N. H. 96; Lawrence v. State, 2 Tex. App. 479; Stephens v. State, 1 Swan (Tenn.) 157. 80 Reg. v. Lavey, 3 Car. & Kir. 26; believed the false testimony, or that the result would have been the same if the accused had not given false testimony.81 § 3081. Materiality-How shown.-The record of the former proceedings is usually admissible and generally necessary to show the materiality of the alleged false testimony, but as will be hereafter shown, parol evidence is admissible in some instances and the reporter who takes down the evidence may read from his notes in a proper case. "Where the proof of materiality is found in the records of the court, or in the documents necessary to show the nature of the proceedings in which the oath was taken, this fact," says Professor Greenleaf, "will appear in the course of proving the proceedings, as has already been shown. But where the perjury is assigned in the evidence given in the cause, it will be necessary, not only to produce the record, but to give evidence of so much of the state of the cause, and its precise posture at the time of the prisoner's testifying, as will show the materiality of his testimony."82 In a recent case in which the defendant was charged with having falsely sworn that he did not commit an assault on his wife, the state was allowed to show the assault and all that occured at the time "in order to develop the materiality of the issue laid in the indictment."83 § 3082. Record of former proceedings.-To show that the false statement was made in a judicial proceeding, and that it was a material statement, it is generally proper to introduce in evidence the proceedings of the former trial upon which the perjury was committed, and to show defendant's testimony upon that trial.84 Reg. v. Gibbons, 9 Cox Cr. Cas. 105; 81 Hamper's Case, 3 Leon 230; Wood v. People, 59 N. Y. 117; Pollard v. People, 69 Ill. 148, 154. 82 3 Greenleaf Ev., § 197. 83 Townley V. State, (Tex. Cr. App.) 81 S. W. 309. 84 Heflin v. State, 88 Ga. 151, 14 S. E. 112, 30 Am. St. 147 (stating also that, as a general rule, the record, or a duly authenticated transcript, is necessary to prove the judicial proceedings); Partain v. State, 22 Tex. App. 100, 2 S. W. 854; People v. Macard, 109 Mich. 623, 67 N. W. 968; Kitchen v. State, 26 Tex. App. 165, 9 S. W. 461; Smith v. State, 31 Tex. Cr. App. 315, 20 S. W. 707; Rogers v. State, 35 Tex. Cr. App. 221, 32 S. W. 1044, holds that where it appeared that the false testimony was given upon another date than the one on the certificate, it was proper to show that the certificate was not correctly dated. |