1084 FOSTER V. STATE. [179 FOSTER V. STATE. Opinion delivered Septenher 23, 1929. 1. PERJURY—SUFFICIENCY OF OVIDENCE.—In a prosecution for perjury, where two witnesses testified that defendant falsely swore in a prosecution for selling whiskey that they took whiskey to another's house, when in fact they bought whiskey there, h,eld to support a finding that defendant was guilty of perjury.
ARK.] FOSTER V. STATE. 1085 2. PURJURY—MA1ORIALITY OF' TESTIMONY.—When there is no dispute about the facts sworn to, whether the testimony on which perjury is aSsigned is material is a question of law to be decided by the court, and not of fact to 'be passed on by the jury. 3. CRIMINAL LAW—INSTRUCTION AS TO REASONARLF DOCBT.—In a prosecution for perjury, refusal to instruct that, if evidence on behalf of defendant raised a reasonable doubt, the jury should acquit, was not error; the correct instruction being that if, after considering the evidence in the whole case there was reasonable doubt, defendant should be acquitted. Appeal from Hempstead Circuit 'Court; James H. McCollam, Judge; affirmed. Hal L. Norwood, Attorney General, and . Robert F. Smith, Assistant, for appellee. MEHAFFY, J; The appellant was convicted of the crime of perjury, his punishment fixed at one year in the penitentiary, and he prosecutes this appeal to reverse the judgment of the circuit court. Appellant has filed no abstract of brief, but his motion for a new trial raised the questions that the verdict wa.s contrary to law and to the evidence and that the court erred in giving and refusing certain instructions. The indictment charged, in proper form, that appellant committed . the crime of perjury in testifying falsely at a trial in the Hempstead Circuit Court, in a case where Gray Dodson was .charged .with the crime a selling whiskey ; that appellant testified in said case that he saw N. C. Reed and C. E. Hester at the horae of Gray Dodson on a certain date, and that Reed and Hester came to Dodson's house, and that appellant was on the front porch of Dodson's house, and that Reed and Hester took a quart fruit-jar of whiskey out of the car and brought it on Gray Dodson's premises, and that appellant and Dod-son drank some of the whiskey. The witnesses Reed and Hester both testified that the testimony given by appellant in the trial of Dodson was not true; that they did -not take any whiskey there, but bought the whiskey from Dodson. Dodson was being tried for selling whiskey, and appellant was a. witness, and undertook by his testimony to show that Reed and
1086 FOSTER V. STATE. [179 Hester brought the whiskey there and that they did not bUy it from Dodson. The question was whether Dodson sold whiskey. This was a material . question in the trial of said Dodson. There was ample evidence to justify the jury in finding the defendant. guilty. There is no dispute about the witness having been sworn and about his testifying in the case of :State v. Dodson. A nuMber of other witnesses testified, but it is not important to set out the testimony. There was some confliet in the testirnony about whether certain witnesses were present, and also albout whether some of the witnesses who testified were at Dodson's place at the .time. it was charged the whiskey was sold, but these were questicins for the jury, and the verdict settled them against the. appellant. Wright v. State, 177 Ark. 1039, 9 s: W. (2d) 2331' The. appellant urges a reversal of the case because the cciurt, 'in one of the instructions, told the jury, with respect tO_the materiality of the testimony, "if you find he gave stich testimony, you are told -it was Material."' In other words, • the court told the, jury that the testi-thoi material, and appellant contends that this question shOuld have been submitted to the jury. .All the-evidence with reference to the trial of State v. Dodson and-the testimony of appellant given in that case. is uncontradicted, and, when the factS are undisputed, the question of Whether, the testimony is material is, for 'the court and , not for the jury. 2 Wharton's Criminal Law, 1700. ."When there is_no dispute about the facts sworn to, the question whether the testimony on which perjury is. assigned is material, is a question of . law to -be decided by.the.court, and not of _fact to be passed on by the jury." Nel,son v. State, 32 Ark: 192; Grissom v. State, 88 Ark. 115, 113 S. W. 1011 ; Barre v. State, .99 Ark. 629, 139 S. W. 641 . ; . 30 .Cyc.. 1456. It.was therefore proper for the court to tell the jury that the testimony was material.
A RK . 1087 Appellant also complains at P I P re f ual of the court to give instruction No. 7, requested by him, -which, in effect, told the jury that, if the eVidence on behalf of the defendant raised in their minds-a reasonable doubt, they must acquit. This was not 'a correct instruction. If, after considering the evidence in. the whole case, there Was -a reasonable doubt, he should have . been , acquitted. But the court fully and correctly instructed the jury with reference to reasonable doubt, and what we have said • above disposes of all th c.- e other questions raised by • the defendant. The judgment of the circuit court is affirmed.
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