jury unexplained and uncontradicted, it could not have influenced their verdict in the least, or had any bearing upon their minds in determining any question before them. The fact that a person has permitted a witness to testify to immaterial matters without objection does not entitle him to cross-examine the witness on such immaterial matters, or to impeach him. Greenleaf (volume 1, § 448) states the rule applicable to this case thus: "The rule that the evidence offered must correspond with the allegations, and be confined to the point in issue, excludes all evidence of collateral facts which affords no reasonable inferences as to the principal matters in dispute." The principal matter in dispute in the Blackburn Case was whether Blackburn saw Katie A. Woodruff at the east line of Oklahoma at noon of April 22, 1889; and the testimony of Stanley to the effect that Speed said he would make him trouble if Katie Woodruff was forced on the stand to testify, could afford no reasonable inference or presumption as to whether Blackburn's evidence was true or not. Great latitude should be allowed in cross-examination to test the interest, bias, prejudice, or character of a witness. Greenleaf again says: "The rule is now considered by the supreme court of the United States to be well established that a party has no right to crossexamine any witness except as to facts and circumstances connected with the matters he stated in his direct examination," (1 Greenl. Ev. § 445;) and cites in support of this statement Railway Co. v. Stimpson, 14 Pet. 448. Under this rule the cross-examination of Stanley could only have been permitted by the court for the purpose of affecting his credit; and if his credit was in question affecting any material matter, perjury might be based upon such testimony. But Greenleaf says: "It is a well-settled rule that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence, should he deny it, thereby to discredit his testimony." 1 Greenl. Ev. § 449. And, as we have before stated, the testimony of Stanley in chief was not material in the Blackburn Case, and was improperly permitted to be introduced. It presented no question for the consideration of the jury, and could not in any manner affect the issue in that case; hence his credit was not a question to be considered,-was wholly immaterial; and the whole cross-examination was immaterial and irrelevant, and no perjury could be based upon such testimony. In our view of this case, the court erred in instructing the jury that the evidence of Stanley in the Blackburn Case was material to the issues in that case, and for such error the cause should be reversed; and, inasmuch as we hold that the testimony on which the perjury is assigned was not material, a new trial could only result in an acquittal. The

judgment is reversed, with directions to discharge the prisoner.

On Rehearing.

(August 17, 1893.)

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 susceptible 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 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, 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 ad

mirable authority in criminal matters. In section 1019, 2 Bish. New Crim. Law, it is said: "Though a witness is in law incompetent, if in fact the court admits him, he commits perjury when what he testifies to is willfully 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 section 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 section 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 section 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 occasion. They cannot overrule the judge on the question, and refuse to be influenced by what the witness says. If now what he 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 as to influence or affect the verdict, then it is material matter. If not, it is immaterial, and, however false it may be, is not perjury. Applying these rules to the case at bar, we see no reason for departing from the opinion we have heretofore rendered. 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 confirms us that our original opinion was correct, and that the motion for rehearing should be overruled.

(2 Okl. 116)

PETERS v. UNITED STATES. (Supreme Court of Oklahoma. Aug. 17, 1893.) PERJURY-LAND CONTESTS-INDICTMENT-CHANGE OF VENUE-AFFIDAVIT-APPEAL-ABSTRACT. 1. Rev. St. U. S. § 5392, makes false swearing punishable as perjury when committed by a

person who, having taken an oath before a competent tribunal, officer, or person in any case in which a law of the United States authorizes an oath to be administered, to testify truly, states any material matter which he does not believe to be true. Section 2246 authorizes the register or receiver of a local land office to administer any oath required by law or the instructions of the general land office, in connection with the entry or purchase of public lands. The rules of the general land office, approved August 13, 1885, (4 Dec. Dep. Int. 35,) require that when a contest is filed against an entry the register and receiver shall set a day for trial, and take and reduce to writing the testimony of all witnesses present at the trial. Held that, as "testimony" cannot be taken without the administration of an oath, the register or receiver was authorized to administer it, and false swearing before him in a contest is punishable under the statute.

2. Organic Act Okl. § 20, (26 Stat. 91,) by providing that the procedure in contests in Oklahoma shall be in the manner and form prescribed under the homestead laws, authorizes witnesses in contest cases to be sworn by the register or receiver.

3. Act Cong. March 3, 1857, § 5, (11 Stat. 250,) declaring the making of false affidavits, or giving false testimony in or to be used in land offices, in connection with the disposal of public land, to be perjury, being an independent act, permanent in character, though special in its application, and not having been repealed by any act prior to the revision of the statutes, is in force though it is omitted from the Revised Statutes.

4. Although each land office, to be legally constituted and authorized to do business, must have a register and a receiver, they need not act jointly in administering oaths and taking testimony in a land contest.

5. An allegation in an indictment for perjury in a land contest case that in a certain land office, of which certain persons were register and receiver, a certain land contest was pending and came on to be tried, is equivalent to an allegation that the contest came on to be heard in the land office before the register and receiver.

6. An affidavit for change of venue is not sufficient which merely states that a fair and impartial trial cannot be had where the case is pending, but facts, from which this conclusion can be drawn, must be alleged.

7. The abstract of the record on which a review of criminal cases in the supreme court is authorized should contain such parts of the record as to fully present all objections to the proceedings in the trial court, and the parts of the record which it purports to contain should be complete.

8. To give the supreme court jurisdiction of an appeal in a criminal case the abstract of the record should contain the notice of appeal served on the clerk of the trial court, as well as the notice of appeal served on the United States attorney.

Appeal from district court, Oklahoma county; John G. Clark, Judge.

Clay Peters was convicted of perjury, and appeals. Affirmed.

Amos Green and J. H. Woods, for appellant. Horace Speed, U. S. Atty.

BURFORD, J. The defendant, Clay Peters, was prosecuted in the district court of Oklahoma county on an indictment for perjury, alleged to have been committed in the United States land office at Oklahoma City, tried by jury, a verdict of guilty returned, and judgment rendered on the verdict, assessing his punishment at a fine of

one dollar, and imprisonment at hard labor for a term of four years in the penitentiary at Stillwater, Minn. The defendant appealed from this judgment, and assigns 24 alleged errors, for which he asks a reversal of the judgment. Several of the assignments of error are duplicated, and a number of them are only proper subjects for a motion for new trial in the court below, and are not available as objections in this court, unless embraced in the motion for new trial. We have repeatedly held that errors committed by the trial court during the progress of the trial are not available in this court, unless presented to the trial court for review, by motion for new trial; and that an assignment of error that the court erred in overruling the motion for new trial saves all the questions properly embraced in the motion for new trial, and the practice is so well settled and established that it would seem there is no excuse for ignoring or violating this well-known rule.

The first, second, third, fourth, fifth, sixth, seventh, eighteenth, and twenty-fourth assignments of error are all embraced in the second, and present but one single question, viz. the sufficiency of the averments in the indictment to constitute a public offense. The indictment is in two counts, and the defendant was convicted upon the second; hence it is unnecessary to consider the first. The second count charges, omitting the caption, as follows: "The grand jurors of the United States of America, having been first duly impaneled, sworn, and charged to inquire of offenses against the laws of the United States committed within said county, in said territory of Oklahoma, upon their oaths aforesaid, in the name and by the authority of the United States of America, do find and present that, at and within said Oklahoma county, in said territory, on the seventh day of January, in the year of our Lord one thousand eight hundred and ninety-one, in the United States land office at Oklahoma City, in said county, of which said land office John H. Burford was then and there register, and John C. Delaney was then and there the receiver, a certain land contest and cause was pending, and then and there came to be tried, wherein one Andrew J. Brown sought to have the homestead entry of one Clay Peters for the northwest quarter of section thirty-five, in township twelve north, of range three west of the Indian meridian, in said territory, canceled and forfeited to the United States; and thereupon it then and there became and was a material question whether the said Clay Peters had entered upon and occupied, contrary to law, any portion of the lands opened to settlement under the acts of congress approved on the first and second days of March, respectively, in the year of our Lord one thousand eight hundred and eighty-nine, and the proclamation of the president, dated the twenty-third day of

March, in the year last aforesaid, and prior to twelve o'clock noon of the twenty-second day of April, of the year last aforesaid, and it then and there became and was a material question where the said Clay Peters was at the hour of twelve o'clock noon on the day last aforesaid, in the year last aforesaid, and at what hour of the day last aforesaid, in the year last aforesaid, the said Clay Peters located and made settlement upon the above-described quarter section of land; and then and there Clay Peters was produced as a witness in said land contest and cause, and as said witness in said land contest and cause was duly sworn to testify to the truth, the whole truth, and nothing but the truth, in said cause, by said John C. Delaney, receiver, as aforesaid, he, the said John C. Delaney, as said receiver, being then and there duly authorized and empowered, under the laws of the United States of America, to administer such oath; and being then and there a witness in said land contest and cause, as aforesaid, so duly sworn as aforesaid, the said Clay Peters did knowingly, willfully, corruptly, feloniously, and falsely testify and depose and say, in substance and effect, that he, the said Clay Peters, was in the Pottawatomie reservation at twelve o'clock noon on the twentysecond day of April, in the year last aforesaid; that he, the said Clay Peters, at twelve o'clock noon on the day last aforesaid, in the year last aforesaid, entered the Oklahoma country from the Pottawatomie reservation; and that he, the said Clay Peters, located and made settlement upon the aforesaid quarter section of land at the hour of two o'clock in the afternoon of the twenty-second day of April, in the year of our Lord one thousand eight hundred and eightynine. Whereas, in truth and in fact, the said Clay Peters was not in the Pottawatomie reservation at twelve o'clock noon on the twenty-second day of April, in the year last aforesaid; and whereas, in truth and in fact, the said Clay Peters did not enter the Oklahoma country from the Pottawatomie reservation on the day last aforesaid, in the year last aforesaid; and whereas, in truth and in fact, the said Clay Peters did not enter the Oklahoma country from the Pottawatomie reservation on the day last aforesaid, in the year last aforesaid, at the hour of twelve o'clock noon; and whereas, in truth and in fact, the said Clay Peters did not locate and make settlement upon the aforesaid quarter section of land at two o'clock in the afternoon of the twenty-second day of April, in the year of our Lord one thousand eight hundred and eighty-nine. In all of which partieulars the testimony, statements, and declarations so testified and deposed unto by the said Clay Peters were then and there material matter in and to the said contest and cause so instituted, begun, and heard as aforesaid, and were then and there not true,

but false, and were then and there by the said Clay Peters not believed to be true, but were then and there by him believed to be false. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Clay Peters, on the seventh day of January, in the year of our Lord one thousand eight hundred and ninety-one, at the county aforesaid, did knowingly, falsely, and corruptly and feloniously commit willful and corrupt perjury in and by his oath so taken, as aforesaid, before the said John C. Delaney, receiver, as aforesaid, he, the said John C. Delaney, as such receiver, then and there having sufficient and competent power aud authority under the laws of the United States of America, to administer said oath to the said Clay Peters; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. Horace Speed, United States Attorney."

In support of the demurrer to the indictment it is contended that there is no law of the United States under which this prosecution can be maintained. It is contended that the case presented by the indictment does not come within the provision of section 5392, Rev. St. U. S., and that section 5 of the act of 1857 is repealed. At common law, in order to constitute the crime of perjury, it was necessary that the alleged false testimony should have been given before a competent judicial tribunal, having jurisdiction of the parties to and the subject-matter of the action, or in the course of justice. Our statute is much broader and more comprehensive, and makes false swearing punishable as perjury when committed by a person who, having taken an oath before a competent tribunal, officer, or person in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true. Rev. St. U. S. § 5392. It is not necessary, under this statute, that the false testimony should be given in a judicial proceeding, but, if the oath is taken before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, and the matter sworn to is material and false, it is perjury. In this case, the oath administered by the receiver of the United States land office was authorized to be administered by a law of the United States. "The register or receiver is authorized, and it shall be their duty to administer any oath required by law or the instructions of the general land office, in connection with the entry or purchase of any tract of public lands." Id. § 2246. The rules of the general land office, of which the courts take

judicial knowledge, and which need not be pleaded or proved, require that, where a contest is filed in the local land office against an entry or other filing, the register and receiver shall set a day for trial, notify the contestee of the time and place of hearing, and on the day set for trial take the testimony of all witnesses present, and reduce the same to writing, allow opposing claimants to confront and cross-examine witnesses, and exclude no testimony offered, unless it be obviously irrelevant. Rules approved August 13, 1885, (4 Dec. Dep. Int. 35.) The rules require the testimony of witnesses in contest cases to be taken and reduced to writing by the officers of the land office. Testimony cannot be taken without administering an oath to the witness. Bou

vier defines "testimony" as follows: "The statement made by a witness under oath or affirmation." 2 Bouv. Law Dict. 589. The authority to take testimony carries with it the power and authority, as well as the requirement, to administer oaths to the witnesses. "It is a general principle of law in the construction of all powers of this sort that, where the end is required, the appropriate means are given." U. S. V. Bailey, 9 Pet. 238. The secretary of the interior is charged with the supervision of public business relating to the public lands. Rev. St. U. S. § 2478. The commissioner of the general land office is authorized to perform, under the direction of the secretary of the interior, all executive duties pertaining to the sale and survey of the public lands. Id. § 453. The commissioner is also empowered, under the direction of the secretary of the interior, to enforce and carry into execution by appropriate rules and regulations all the provisions of the statute in reference to public lands. Id. § 2478. These rules and regulations, when adopted, approved, and put in force by the interior department, have all the force and effect of a law of the United States.

It has been uniformly held that the heads of the executive department may, with the approval of the president, establish rules and regulations in execution of, or supplementary to, but not in conflict with, the statutes defining their powers or conferring rights upon others, and when so adopted such rules and regulations have the force and effect of law. U. S. v. Symonds, 120 U. S. 46, 7 Sup. Ct. Rep. 411; U. S. v. Bailey, 9 Pet. 238; U. S. v. Eliason, 16 Pet. 291; Aldridge v. Williams, 3 How. 9; Gratiot v. U. S., 4 How. 80; Ex parte Reed, 100 U. S. 13; Smith v. Whitney, 116 U. S. 181, 6 Sup. Ct. Rep. 570; U. S. v. Boggs, 31 Fed. Rep. 337; U. S. v. Eaton, 144 U. S. 677, 12 Sup. Ct. Rep. 764. The courts take judicial notice of the rules and regulations of the executive departments of the government, promulgated by authority of law. U. S. v. Hearing, 26 Fed. Rep. 744; Fisher v. Hallock, 50 Mich. 463, 15 N. W. Rep. 552; U. S.

v. Williams, 6 Mon. 379, 12 Pac. Rep. 851; Low v. Hanson, 72 Me. 104; 12 Amer. & Eng. Enc. Law, 153. The courts will take judicial notice of the rules and regulations of the general land office. U. S. v. Hearing, 26 Fed. Rep. 744; 12 Amer. & Eng. Enc. Law, 153. The conclusion necessarily fol lows, deducible from the statutes of the United States, the rules and regulations of the general land office, and the adjudications of the court of the highest resort in the nation, that prosecutions for perjury may be maintained under section 5397, Rev. St. U. S., for false swearing in the United States land offices.

In the case of U. S. v. Bailey, 9 Pet. 238, the supreme court of the United States had under consideration the question whether or not the crime of perjury could be based upon an oath required by a rule of the treasury department. It was admitted that there was no statute of the United States requiring such oath to be taken, but there was a statute making it perjury to swear falsely in support of any claim against the United States. The statute defined the offense, and the question presented for determination of the court was whether or not the oath was administered by one authorized by a law of the United States. The court sustained the conviction upon the ground that the rule of the treasury department permitting oaths of the character required to be made before a justice of the peace was a reasonable regulation, and within the powers of the secretary of the treasury to protect the government from fraud. This case has never been repealed, but has been often quoted and approved. It might seem that the later case of U. S. v. Eaton, 144 U. S. 677, 12 Sup. Ct. Rep. 764, is in conflict with the rule in the Bailey Case, but a close examination of the case will reveal a material distinction. the Eaton Case, supra, the defendant was indicted and tried for failure to keep certain books required to be kept by a rule or regulation of the treasury department. There was no law of the United States making it criminal to fail to keep such books, and hence the court held that an offense could not be created by a rule of the department, or that the failure to do an act required by a rule or regulation would not subject the offender to criminal punishment under other provisions of the statute. In the case at bar the crime of perjury or false swearing is defined, and the punishment prescribed by statute, and the rules of the general land office in no sense create the offense, or attempt to make an act punishable, not otherwise criminal, viz. false swearing. The act of taking the oath is but one of the material ingredients, and when it is shown to have been administered by a person authorized to administer oaths in such cases, in a matter in which an oath is authorized, that ingredient of the offense is complete. We think this class of cases comes squarely

In

within the rule announced by the supreme court in the Bailey Case. Yet we need not rely solely upon the rules or regulations of the general land office alone to support the indictment in this case. Congress has, by express enactment, recognized and ratified these rules and regulations, and made them law in Oklahoma. Section 20 of our organic act (26 Stat. 91) provides "that the proce dure in applications, entries, contests and adjudications in the territory of Oklahoma, shall be in the form and manner prescribed under the homestead laws of the United States, and the general principles and provisions of the homestead laws." It will be observed that this law goes further than to make the homestead laws applicable, and adopts and puts in force the procedure in contests then in force, as well as the general provisions and principles of the homestead laws. What was the procedure in contests at that time? It was the prac tice and requirement of the department, and had always been, to require witnesses in contest cases to be sworn by the register or receiver before proceeding to take their testimony. This was well known to the legislative power when the above statute was enacted, and we must assume that they legislated with special reference to the law as it then existed, and not only the law as found in the statutes of the United States, but also the general principles and provisions governing and applicable to such laws, as well as the practice and procedure then in vogue in the department and land offices. And if it were conceded that there is no authority given by statute for administering oaths to witnesses in contest cases, in other jurisdictions, certainly the rule is different in this territory, and in every instance where an oath was required by a regulation of the general land office in relation to homesteads on the public lands, prior to the adoption of the organic act, such oaths are now authorized by a law of the United States.

It is earnestly contended by counsel for appellant that the indictment in this case can only be held sufficient under section 5 of the act of March 3, 1857, (11 Stat. 250;) and, as they further contend that said section is repealed by sections 5595 and 5596 of the Revised Statutes, it is insisted that the demurrer to the indictment should have been sustained. As to whether section 5, supra, is still in force, is a question upon which the courts of the country seem to be divided. Section 5392, Rev. St. U. S., defining the crime of perjury, was adopted and became a law in 1790. It was evidently found to be insufficient to embrace all cases of false swearing, and to meet and provide a punishment for a certain class of special cases that might arise in the United States land offices, congress, in 1857, passed an act which was entitled "An act in addition to an act more effectually to provide for punishment of certain crimes against the United