The cases cited by counsel for appellant are not in point. Ryer v. Fletcher Ryer Co. 126 Cal. 482, 58 Pac. 908, was a suit commenced by an administrator against a person who, at the death of the decedent, owned the land in common with the decedent. It was not an action to partition the land among the heirs, but rather a suit by an administrator to recover property of the decedent from one not an heir and for the benefit of the heirs and of the estate. The case of Grant v. Murphy, 116 Cal. 432, 58 Am. St. Rep. 188, 48 Pac. 481, was a controversy between rival estates and, like the preceding case, it was one ultimately to decide what property belonged to the estate and what did not. The cases of Smith v. Smith, 132 Iowa, 700, 119 Am. St. Rep. 581, 109 N. W. 194, and Poulter v. Poulter, 193 Ill. 641, 61 N. E. 1056, were handed down in states having different constitutional provisions from our own.

The only section of our Code indeed which seems to furnish any support for the position of the appellants is § 8797 of the Compiled Laws of 1913, which is § 6460 of the Revised Codes of 1899, and which provides that "the heirs or devisees may themselves or jointly with the executor or administrator maintain an action for the possession of the real estate or for the purpose of quieting title to the same against anyone except the executor or administrator. For the purpose of bringing suits to quiet title or for partition of such estate the possession of the executor or administrator is the possession of the heirs or devisees. Such possession by the heirs or devisees is subject, however, to the possession of the executor or administrator for the purposes of administration as provided in this Code."

It is clear, however, that the right of action in the heirs, which is conferred by this section, is subject to the right of possession of the administrator, and confers no right to maintain an action which is hostile to him. Blakemore v. Roberts, 12 N. D. 394, 96 N. W. 1029.

Nor is there any merit in appellant's contention that the demurrer amounted to a general appearance, and therefore conferred jurisdiction upon the district court in this suit. The demurrer asked for no relief except the dismissal of the action and costs. Section 7442 expressly provides that the points may be raised by demurrer; "that the court has no jurisdiction of the person of the defendant or the subject of the action." It is true that the demurrer also alleges that the complaint

does not state facts sufficient to constitute a cause of action, and it is possible that this allegation may have given the district court jurisdiction of the persons of the defendants. It did not, and could not, however, give the district court jurisdiction. of the subject matter, and it is the jurisdiction of the subject matter which is, after all, the matter which is involved in this case.

The judgment of the District Court is affirmed.

STATE OF NORTH DAKOTA v. GUSTAVE A. FALK.

A prosecution for perjury for alleged false testimony given by defendant during trial of a civil action. There was no proof made of what the issues were in such civil action. Hence, there was no evidence from which to determine the materiality of such false testimony. A conviction of perjury cannot be sustained upon immaterial testimony, or sustained without proof of materiality of the false testimony upon which the prosecution is predicated. Such error was raised by motion for an advised verdict of acquittal, again on exceptions to instructions.

Opinion filed July 26, 1916.

Appeal from a judgment of conviction of perjury entered in the District Court of Morton County, Hanley, Judge.

Reversed and a new trial granted.

A. T. Faber, for appellant.

The essentials of the crime charged are: the taking of the oath, in a proceeding before a competent tribunal, in cases in which an oath may be administered; giving testimony, and, wilfully and contrary to said

Note.-Authorities on the question of whether a charge of subornation of perjury may be based on false testimony which is immaterial are collected in a note in 25 L.R.A. (N.S.) 120, which may be of interest in connection with this case.

oath, stating any material matter which he knows to be false. Comp. Laws 1913, § 9366; Hitesman v. State, 48 Ind. 473; People v. Simpton, 133 Cal. 367, 65 Pac. 834; State v. Divoll, 44 N. H. 140; United States v. McConaughy, 33 Fed. 168; Brown v. State, 91 Wis. 245, 64 N. W. 749; 16 Enc. Pl. & Pr. 329; State v. Scott, 78 Minn. 311, 81 N. W. 3.

The information must contain a positive declaration or averment that defendant was duly sworn to testify truthfully. People v. Simpton, 133 Cal. 367, 65 Pac. 834; People v. Dunlap, 113 Cal. 74, 45 Pac. 183.

All of the elements specified in the statute must be alleged. State v. Webb, 41 Tex. 67; Juaraqui v. State, 28 Tex. 625.

The information must allege in general terms that certain issues were joined and on trial in the proceeding in which the alleged perjury was committed. It is not sufficient to allege that the issue to be tried. was material. Guston v. People, 61 Barb. 35; People v. Howard, 111 Cal. 655, 44 Pac. 342; Rosebud v. State, 50 Tex. Crim. Rep. 475, 98 S. W. 858; McMurtry v. State, 38 Tex. Crim. Rep. 521, 43 S. W. 1010; Buller v. State, 33 Tex. Crim. Rep. 551, 28 S. W. 465.

The name of the court must also be alleged. 3 Whart. Crim. Law, 2221; State v. Ayer, 40 Kan. 43, 19 Pac. 403; State v. Oppenheimer, 41 Tex. 82.

The period of time in which the alleged false testimony was material to the issue on the trial upon which the alleged perjury was committed. This is essential so as to apprise defendant of the charge against him. People v. Vogt, 156 Mich. 594, 121 N. W. 293; People v. Maxwell, 118 Cal. 50, 50 Pac. 18; State v. Webb, 41 Tex. 67; Gibson v. State, 44 Ala. 17; State v. Lea, 3 Ala. 602; State v. Raymond, 20 Iowa, 582; Fitch v. Com. 92 Va. 824, 24 S. E. 272; Burns v. People, 59 Barb. 531.

The state must establish what the material issues were in the case in which the false testimony is alleged to have been given, in order to show the fact that the false testimony was material to such issue. 2 Bishop, Crim. Proc. 3d ed. § 933; People v. Ah Sing, 95 Cal. 657, 30 Pac. 797; Bledsoe v. State, 64 Ark. 474, 42 S. W. 899; 3 Greenl. Ev. § 197; State v. Aikens, 32 Iowa, 403; Wood v. People, 59 N. Y. 117; McMurry v. State, 6 Ala. 324; Heflin v. State, 88 Ga. 151, 30 Am. St.

Rep. 147, 14 S. E. 112; People v. Lem You, 97 Cal. 224, 32 Pac. 11; People v. Macard, 109 Mich. 623, 67 N. W. 968.

An instruction is erroneous where it assumes material facts to be proved of which there is no evidence or upon which the evidence is contradicted or controverted. 12 Cyc. 601 (XIV); People v. Matthai, 135 Cal. 442, 67 Pac. 694; Densmore v. State, 67 Ind. 306, 33 Am. Rep. 96; State v. Bige, 112 Iowa, 433, 84 N. W. 518; Com. v. Smith, 153 Mass. 97, 26 N. E. 436; State v. Peltier, 21 N. D. 188, 129 N. W. 451; Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003; State v. Barry, 11 N. D. 428, 92 N. W. 809.

Wm. Langer, State's Attorney, Henry J. Linde, Attorney General, Francis J. Murphy and H. R. Pitzing, Assistant Attorneys General, for respondent.

No information or indictment is insufficient, nor can the trial judg ment or other proceedings thereon be affected by reason of a defect or impression in matters of form which does not tend to affect the proceedings or the substantial rights of the defendant upon the merits. Comp. Laws 1913, § 10694; State v. Tolley, 23 N. D. 284, 136 N. W. 784.

It is not necessary in an information to state presumptions of law, nor matters of which judicial notice is taken. Comp. Laws 1913, §

10695.

Goss, J. Defendant was informed against and convicted of perjury committed during the trial of a civil action. He appeals, assigning many errors, only one of which is necessary to be considered. To charge perjury, it was necessary to allege the materiality of the false testimony given. To establish materiality, proof of the issues under which the testimony was offered was essential. But there is no proof of what the issues were in the trial during which the alleged false testimony was given, from which to determine materiality of the evidence given. This failure of proof was raised by motion to advise a verdict of acquittal, and again on exceptions to instructions. The trial court instructed: "And in determining whether or not the testimony was material, as stated before, the question you should bear in mind is what the issues were in the former trial, what the complaint was in the former trial and what the issue was that was being tried." And "the

question that you are trying is, whether or not, as such witness, Falk testified falsely to any material fact in that case, and if you find beyond a reasonable doubt from the evidence that he did so testify falsely to a material fact, and that he knew he was testifying falsely at that time to such material fact, and knew it was material, then, under the information and under these instructions, you should find the defendant guilty." The court also instructed upon materiality, when testimony would be material and when it would not be. The exception taken to these instructions is that "the court erred in assuming without any evidence that the state had established what the material issues in the former trial were upon which the alleged perjury was assigned."

The alleged perjury was committed in a civil action, and one in which the information charges that it was a material issue to establish that a common nuisance was kept and maintained at a certain place by the keeping of intoxicating liquors for sale there as a beverage, or by permitting people to there resort for the purpose of drinking intoxicating liquors; and the testimony of Falk wherein he denied seeing beer or seeing others drink beer there, the alleged false testimony, is set forth. The materiality of these statements is apparent from the face of the information, and therefore materiality is probably sufficiently alleged (Comp. Laws 1913, § 10700; Fitch v. Com. 92 Va. 824, 24 S. E. 272; 30 Cyc. 1435; Whart. Crim. Law, 11th ed. § 1549), although it is in bad form and open to question. See People v. Vogt, 156 Mich. 594, 121 N. W. 293; State v. Mumford, 12 N. C. (1 Dev. L.) 519, 17 Am. Dec. 573; and United States v. Robinson, 4 Dak. 72, 23 N. W. 90. But in proving its case the state wholly overlooked offering proof of what the issue was in said nuisance action. It offered in evidence only the summons, complaint, and injunctional order therein issued, without putting in evidence the answer or establishing whether any allegation of said complaint was controverted or was in issue on trial in said action. The proof as to issues on trial in the civil action is as indefinite as though the complaint therein was not in evidence. For all that appears upon this record every syllable of testimony given by Falk may have been upon matters concerning which there was no issue and no necessity of proof whatever. And it seems that this was not entirely an oversight, as the clerk of the court