the testimony “which the indictment charges he did give”; and by being told in direct connection with this that they must find “that such testimony was false” they were expressly limited to the testimony laid in the indictment. The clause "whatever testimony he did give in that action," which is relied upon by the appellant, is by its connective "that is" placed in direct apposition with the clause “that such testimony was false," and is to be construed as an explanation

' thereof and with the same limitation. The further direction to determine whether “any of such testimony” which he gave in the prior action was false limited their consideration to "such” of the testimony laid in the indictment as they should find had been given by him, and is to be read as a continuation of and in connection with the prior portion of the instruction. The frequent limitation of their consideration to "such testimony" must have been understood by the jury as referring simply to whatever testimony of that charged in the indictment they should find was given by him.

2. In direct connection with the last sentence of the abovequoted portion of the instruction the court told the jury that "whether the testimony alleged to be false was or was not material is a question of law which it is for the court to determine and not for the jury; the question of the materiality of evidence, no matter when and how it may arise, is always one of law for the court, and not of fact for the jury”; that in rendering a verdict in criminal cases the jury "only has the right to find the facts and apply to them the law as given by the court, and on a trial for perjury it is the duty of the court to instruct the jury as to what facts would show the testimony to be material”; and said to the jury that if they found certain facts to be as alleged, the testimony, charged in the indictment herein to have been given by the defendant, was material to the issues in the former action.

There was no error in thus instructing the jury. Whether testimony given upon the trial of a cause is material to the issues then before the court is a question of law to be deter. mined by the court; but, as is sometimes the case, especially upon a trial for perjury, the materiality of testimony will depend upon the existence of certain other facts; and if these facts are controverted, their existence must be determined by the jury. The instruction to them that the existence of these facts would as a matter of law render the testimony material, and that they must so find, is in entire harmony with the instruction that, for the purpose of reaching a verdict, they must determine whether it is material. In being permitted to determine the existence of these facts, the determination of the materiality of the testimony was left with the jury. A jury is at all times required in rendering their verdict to apply the facts shown in evidence in accordance with the rules of law given them by the court; but in so doing the verdict is none the less rendered by the jury. (See People v. Lem You, 97 Cal. 224, (33 Pac. 11); Ball v. Rawles, 93 Cal. 228, [27 Am. St. Rep. 174, 28 Pac. 937); Pen. Code, sec. 1126.)

“Before the defendant can be convicted of the offense charged in the indictment his guilt must be shown by the positive and direct testimony of two witnesses, or by the positive and direct testimony of one witness and corroborating circumstances. In other words, the law prescribes a different rule of evidence in perjury cases than prevails in ordinary cases, both as to the kind and amount of testimony required to convict. The rule is different as to the kind of evidence, for positive testimony is absolutely necessary in a perjury case, and circumstantial evidence standing alone is never sufficient. Again, for nearly all violations of the law the evidence of one credible witness is sufficient to support a conviction, but in prosecutions for perjury the rule is clearly the contrary, and is as I have stated. In perjury cases, in order that the evidence may be deemed sufficient, there must be positive testimony to a contrary state of facts to that sworn to by the defendant at the previous trial; that testimony must either be by two witnesses, or by one witness and corroborating circumstances.'

Section 1986 of the Code of Civil Procedure declares: “Perjury and treason must be proved by testimony of more than one witness; treason by the testimony of two witnesses to the same overt act; and perjury by the testimony of two witnesses, or one witness and corroborating circumstances.”

The above instruction, it will be seen, in addition to stating the provisions of section 1968 of the Code of Civil Procedure, told the jury that the guilt of the defendant must also be shown by the positive and direct" testimony of two witnesses, or the positive and direct" testimony of one witness and corroborating circumstances. As the instruction in this respect was favorable to the appellant, he does not claim that it was erroneous, but contends that there was no “direct” testimony of the guilt of the defendant; that "there was no witness who was present at said cell and swore that the defendant did not there write said telegrams, and did not deliver them to Norine Schneider''; his counsel saying also in the brief filed in his behalf that “if it were sought to prove the defendant guilty of the crime charged in the indictment by direct testimony, the prosecution would have to produce at least one witness who was in the cell with the defendant all the time during his incarceration at Odgen, and such witness would have to testify that the defendant did not during such incarceration write said telegram, and did not then and there deliver the same to Norine Schneider. Such di. rect evidence was not produced, and the jury did not follow the instruction of the court in finding the defendant guilty."

It was clearly shown at the trial herein that at the trial of the former action the defendant did give the testimony charged in the indictment to have been then given by him; that at that time he testified that he was arrested at Odgen in the night-time and on the same night was taken to the police station in that city and confined in a cell or room upstairs in the building; that at some time during the morning of the next day after his arrest, and while he was still confined in that room, he wrote the two telegrams in question, and in the afternoon of that day, while still confined in the room, delivered them to Norine Schneider. For the purpose of showing the falsity of this testimony the prosecution called as a witness James F. Pender, who testified that he was the officer who, in company with the chief of police, arrested the defendant at Odgen, and took him from the hotel where he was arrested to the police station; that Norine Schneider was with the defendant when he was arrested, and accompanied them from the hotel to the police station; that while they were on the way from the hotel to the police station, and before they reached it, Miss Schneider took one of the telegrams from her hat and handed it to the witness; that at the time the defendant was arrested he had a grip which the witness took along with them and searched after they reached the police station and before the defendant was taken upstairs to the cell or room in which he was confined ; that upon so searching the grip they found and took from it the other telegram. Similar testimony was given by the chief of police.

The perjury with which the defendant is charged is, that upon the trial in the former action he falsely testified that the telegrams set forth in the indictment herein were written and delivered by him to Norine Schneider in his cell at Ogden and after his arrest in that city. That he gave such testimony fully appears as above shown, and in fact is not disputed. The fact in dispute at the trial herein, and upon which the falsity or truth of his testimony depended, was whether the telegrams had been written and delivered to her before his arrest, or whether he had written and delivered them in his cell after his arrest. If they were written before he was arrested his testimony that he wrote them after his arrest and while confined in his cell under such arrest was false. Any evidence, therefore, sufficient to establish as a fact that the telegrams had been written before his arrest would establish the physical impossibility of their having been written by him in his cell after his arrest, and thus demonstrate the falsity of his testimony.

"Direct evidence" is declared in section 1831 of the Code of Civil Procedure to be “that which proves the fact in dispute directly without an inference or presumption and which in itself, if true, conclusively establishes that fact." Upon a trial for perjury, direct evidence is not limited to a denial in ipsissimis verbis of the testimony given by the defendant, but includes any positive testimony of a contrary state of facts from that sworn to by him at the former trial, or which is absolutely incompatible with his evidence, or physically in. consistent with the facts so testified to by him. (People v. Green, 54 Cal. 592; People v. Barry, 63 Cal. 62; People v. Wells, 103 Cal. 631, [37 Pac. 529); People v. Porter, 104 Cal. 415, [38 Pac. 88].) The testimony of the witness Pender was direct and positive that he had the telegrams in his possession before the defendant was placed in his cell; that one was given to him by Miss Schneider before he was taken to the police station, and that he found the other in the defendant's grip which the witness took possession of at the time he arrested the de fendant. These facts do not depend upon inference or presumption, but were directly testified to by Pender and the other witness, and such testimony, if true, directly established the physical fact that the telegrams were written before the arrest of the defendant. In the language of the instruction it

positive testimony to a contrary state of facts from that sworn to by the defendant at the previous trial." (See People v. Wells, supra.) The verdict of the jury shows that they accepted the testimony of these two witnesses as true, and that the testimony of the defendant to the contrary was false.

4. The court properly refused the instruction asked by the defendant to the effect that the information in the prior action was defective and did not charge a crime, for the reason that it fails to state that the message was sent “by telegraph"; and that the testimony of the defendant was therefore not material. Whether that information was defective or not was a question to be determined by the court in which that trial was had. That court held it to be sufficient, and its action in this respect was sustained by the supreme court. (People v. Chadwick, 143 Cal. 116, [76 Pac. 884].)

Upon the same grounds the court properly refused to give the instruction asked by the defendant to the effect that, inasmuch as it was shown at the trial of the former action that the defendant did not himself actually send the message by telegraph, but merely furnished the message to the operator to be sent by telegraph, it was not material to know when and where the telegrams herein considered were written.

The further objections that the indictment charges two of. fenses—a perjury committed in swearing falsely that the telegrams were written in Ogden; and another perjury committed by swearing that they were delivered to Norine Schneider at the same place, arises upon the face of the indictment, and whether well taken or not should have been presented by demurrer. (Pen. Code, sec. 1004 (3].) It is unnecessary to determine whether such objection is well taken or not; but as it appears upon the face of the indictment it was waived by failing to make the objection by demurrer. (Pen. Code, sec. 1012.)

5. It is urged by the appellant that, inasmuch as Norine Schneider was the wife of the defendant, the court erred in permitting her to testify in behalf of the people without