63 Colo. 209 | Colo. | 1917
delivered the opinion of the court.
Plaintiff in error was tried and convicted in the District Court of Boulder County of the crime of perjury because of certain testimony he had theretofore given in the trial of a criminal case in that court. Judgment was entered on a verdict of guilty, and the case now is here for review on error. Only a few of the numerous assignments of error have been urged.
It appears that one of the talesmen disclosed upon voir dire that he had been summoned as a special venireman, but had not served as a juryman, during the year previous to the trial of the plaintiff in error. He was challenged by the people, the challenge was resisted, and sustained by the court. This is the first assignment argued. It is neither shown nor alleged that the jury, as finally chosen, was not competent and impartial, or that the defendant exhausted his peremptory challenges before the jury was finally secured. Defendant was entitled to a trial by a competent jury, but not by any particular persons, even though those whom he preferred may have been competent. 24 Cyc. 324. As the court is the trier of the juror’s qualifications, its decisions should not be disturbed, except upon abuse of a discretion thus exercised. Union Gold Mining Company v. Rocky Mt. Nat. Bank, 2 Colo. 566; Collins v. Burns, 16 Colo. 7, 26 Pac. 145; Babcock v. People, 13 Colo. 515, 22 Pac. 817.
The case in which the alleged perjured testimony was given was one for assault with intent to murder. In the introduction to the clerk’s record of the case it was made to appear that the defendants therein had been arraigned upon the charge of murder. The record itself, however, shows that in the information the defendants were charged with the offense of assault with intent and murder. At the beginning of the trial an attempt was made to correct this error nunc pro tunc, which, however, seems to have been
Error is assigned because the court refused to direct a verdict of not guilty on the ground that the alleged perjured testimony was immaterial. Perjured testimony to be material need not be directly to the main issue; if it has a tendency to prove any material fact in the chain of evidence, that makes it material. If it be substantially material it is sufficient. 30 Cyc. 1419. The term “material matter” refers not only to the main fact which is the subject of inquiry, but also to any fact or circumstance which tends to corroborate or strengthen the proof adduced to establish the main fact. Thompson v. People, 26 Colo. 496, 59 Pac. 51; In re Franklin County, 5 Ohio S. & C. Pl. Dec. 691; People v. Greenwall, 5 Utah 112, 13 Pac. 89. It was contended by the People that on the morning of the assault, Wheeler was hired by the defendants and others to drive them from Erie to a point near Hecla Heights in Boulder County, which h'e did, and that after they left his wagon they went to a straw stack, and immediately began shooting at the Hecla mine property. To show that the defendants were at the place where the alleged offense was committed at the time it was committed was one of the material facts to be established. No other single fact in the chain of facts could well be more material.
It is alleged that there was not sufficient evidence to show that the oath'had been properly administered to the defendant, or that it had been given to him while he had his right hand raised. In the absence of any evidence to the contrary, it will be presumed that the oath was properly administered. Thompson v. People, supra. Besides, no objection was made at the time to the form of its administration ; plaintiff in error took the oath, and testified under it, and cannot now claim that its administration was not in conformity with law. 30 Cyc. 1417.
The refusal to give a certain offered instruction, in which the words “wilfully”,- and “corruptly” were defined, was not error. Other instructions sufficiently defined these terms, so far as they are applicable ■ to this case, and under these instructions the jury must have found the testimony to have been given wilfully and corruptly in order to have returned a verdict of guilty. Whether it was given wilfully and corruptly was a matter for the jury to determine, and if the jury found that the defendant knowingly swore falsely, the wilfulness and corruption is necessarily implied. 30 Cyc. 1457; Morgan v. State, 63 Miss. 162; Brown v. State, 57 Miss. 424.
Error is urged upon the refusal to give another instruc
By instruction number 9 the question of the materiality of the alleged perjured testimony was submitted to the jury, and this is assigned as further error. In Thompson v. People, supra, the same question was raised, and the court passed upon it in the following language, which is applicable to the point here involved:
“The next error relied on is the giving of instruction number eight, which is substantially in the language of the information, because it leaves to the jury the question of the materiality of the alleged false testimony. That on a trial for perjury the question of the materiality of the testimony is one of law for the court, is well settled, and in this particular the instruction as given was objectionable. As we have seen from an examination of the testimony, the evidence of the plaintiff in error was material, and the district court would have necessarily so found in overruling the*214 motion for a new trial; so that the submission of the question of the materiality of the evidence to the jury, they having found in their verdict that the false testimony was material, in no way prejudiced the rights of plaintiff in error. State v. Lewis, 10 Kansas 157; Montgomery v. State, 40 S. W. Rep. 805. [Tex. Cr. R.]
Other errors assigned have not been argued, and do not merit discussion. Plaintiff had a fair and impartial trial, and the judgment will be affirmed.
Judgment affirmed.