¶1Decided April 30, 1909.
¶2On Petition for Rehearing.
¶3[101 Pac. 889.]
Per Curiam:¶411. The effect of Section 11, Article I, of the Constitution, and Sections 814, 817, 1402, B. & C. Comp., on the .general rule that the testimony of a witness, ' deceased or out of the State, given on a former trial, is competent on a subsequent trial between the same parties, and relating to the same matter, was, we think, sufficiently considered in the former opinion. As was there said, the constitution and the statutory provisions referred to have relation to the manner-in which the testimony in a criminal trial is to be given- or taken in the first instance, and not the use which- may be made of it after it is given. They were not intended to. abro*567gate the general rule as to the competency of such testimony. It is stoutly insisted, however, that the testimony of Johnson and Hogeboom was incompetent, even under the rule stated, because the trial in which they testified was a nullity, since defendant had not pleaded to the indictment, and hence there was no issue for trial, and the witnesses would not have been liable for perjury if they had sworn falsely. Perjury cannot be committed in a judicial proceeding absolutely void for want of jurisdiction. Collins v. State, 78 Ala. 433; Buell v. State, 45 Ark. 336. But where the court, before whom the oath of a witness is taken, has jurisdiction of the subject-matter and the parties, and the testimony given is material to the inquiry then before the court, false swearing is perjury, though the proceedings may be so irregular or erroneous as to require a reversal on appeal. Maynard v. People, 135 Ill. 416 (25 N. E. 740); State v. Brewer, 7 Blackf. 45; Morford v. Oklahoma, 10 Okl. 741 (63 Pac. 958: 54 L. R. A. 513); State v. Lavalley, 9 Mo. 435; State v. Peters, 107 N. C. 876 (12 S. E. 74); Anderson v. State, 24 Tex. App. 705 (7 S. W. 40). And consequently it is held that the failure of a defendant to enter a plea does not render a subsequent trial so far void that false swearing therein cannot be perjury. State v. Lewis, 10 Kan. 157. Nor will a failure to swear the jury have that effect. Smith v. State, 31 Tex. Cr. R. 315 (20 S. W. 707).
¶5There is a quotation from a California case, in the opinion of Mr. Commissioner King in State v. Walton, 50 Or. 142 (91 Pac. 490: 13 L. R. A. (N. S.) 811), to the effect that perjury cannot be committed on the trial of a defendant in a criminal action, who has not pleaded to the indictment, but this statement was unnecessary to the decision of the case, and is not believed to be sound law. The statutes of this State provides:
“If any person … of whom an oath or affirmation shall be required by such law, shall willfully swear or affirm falsely in regard to any matter or thing concerning which *568such oath or affirmation is authorized or required, such person shall be deemed guilty of perjury.” Section 1875.
¶6The court in which the testimony of Johnson and Hogeboom was given had jurisdiction of the case then on trial. They were required by law to take an oath or affirmation to tell the truth (Section 694) ; and, if the evidence given by them was material to the inquiry then before the court, perjury could be assigned thereon, if it was willfully false, notwithstanding the proceedings were so irregular as to require a reversal on appeal. The irregularities or errors on the trial were matters which concerned the defendant in the case, but not the witnesses who testified therein. It would be no defense for them, if charged with perjury, to show that the court committed error in the proceeding, provided it had jurisdiction. It would be most unreasonable to require that all proceedings of a court, in which a witness testified falsely, should be in strict conformity to law before the witness could be proceeded against for perjury. Such a rule would change the parties and issues, and, instead of trying a perjurer for false swearing, the court would be called upon to review the judgment of the court in which the false swearing occurred.
¶712. It is claimed that the court was in error in holding that the admission of the testimony of Miss Butler, concerning an entry in the school register of the age of defendant, was harmless. The bill of exceptions discloses that defendant was a witness in his own behalf, and, among other things, testified that his age was then 21 years, and on the 1st of September, 1904, he was 17 years old. The State, in rebuttal, called Miss Butler, who testified that a register of the names, ages, attendance, and deportment of pupils in the Couch school, for February, 1900, was in the handwriting of Miss McKenzie, a teacher in such school at that time; that the entries in such register of the names and ages of the pupils were copies from census forms sent out, at the *569beginning of each school term, to the parents and returned signed by one of them. She was thereupon permitted, over defendant’s objection and exception, to read to the jury from such register an entry, to the effect that on February 7, 1900, the defendant was a pupil.in such school, and that his age was 15 years, 3 months. That this testimony was incompetent may be conceded, but we are unable to understand how its admission could, prejudice the defendant in any way. Its only purpose was to show his age, and that was not a material question on the trial. From his own testimony it appears that he had reached an age of discretion at the time the alleged crime was committed, and whether he was older than he claimed could not have any material bearing on his guilt or innocence.
¶813. It is said that the testimony of Miss Butler tended to show that defendant’s evidence as to his age was false, and thereby to discredit his testimony on other matters, under the rule that a witness false in one part of his testimony is to be discredited in others. But there is nothing in the record to show that he gave any other material testimony, and moreover, the entry in the school register did not tend to contradict him. It was made without his knowledge, and he was in no way responsible for it, or any of the entries therein. There is no pretense that he furnished the information for which they were made, or knew anything about them.
¶9There are some other points made in the petition for rehearing, but we think they were sufficiently covered by the former opinion.
¶10Petition denied. Affirmed : Rehearing Denied.
