Opinion of the Court-Ducker, J.

allowing himself to be found in the county wherein the action is commenced.

This question has been ably discussed by counsel for petitioner and also by counsel for the state, but we deem it unnecessary to determine the question, because the matter assigned as perjury in the information has such a bearing upon the merits of the case as to constitute corrupt and false swearing in a matter material to the issue. It had no direct bearing upon the main issue, but went to the credit of the plaintiff as a witness, and was therefore collaterally material to the real facts of the

case.

The wilful and corrupt assertion of a falsehood under oath in a matter important enough to shake the credit of a witness whose testimony is material, will constitute perjury.

Mr. Bishop in his work on Criminal Law lays down the rule to be that whatever goes to the credit of a witness is material, so that perjury may be founded upon it. Bishop's New Criminal Law, secs. 1032-1038.

In 30 Cyc. 1420, the rule is thus stated:

"Perjury may be assigned upon testimony going to the credit of a material witness in a cause, although such evidence is legally inadmissible and ought not to be received."

In People v. Courtney, 94 N. Y. 490-494, the court' said:

"The recent cases sustain the view that perjury may be assigned upon false testimony going to the credit of a witness."

In Wilson v. State, 115 Ga. 206, 208, 41 S. E. 696, 697, 90 Am. St. Rep. 104, 105, the court said:

"If he is called to testify to any material issue in the case, any matter relating to his credibility as a witness becomes collaterally material to the issue on trial; and being thus collaterally material, perjury may be assigned upon false testimony affecting the credibility of the witness."

The rule is thus stated in 21 R. C. L. 259:

Opinion of the Court-Ducker, J.

"It is sufficient if it is material to any proper matter of inquiry, and is calculated to prop or bolster the testimony of a witness in some material point, or to support or attack the credibility of such witness."

When the principle recognized by these authorities is applied to this particular case, the matter charged in the information as false becomes a sufficient predicate for perjury. Its bearing upon the main issue in point of criminality may be thus tested: If its falsity had been made known to the court during the trial of the case, could it have influenced the court on the issue before it? 21 R. C. L. 259. We answer in the affirmative. It might well have affected the credit of the plaintiff as a witness to the extent of causing the court to disregard all of her testimony.

It must be borne in mind that the testimony alleged to have been false, and suborned by the petitioner, was given in a divorce action in which the state, in a sense, is a party to the proceedings. It is recognized by all authorities that the public is vitally interested in preserving the integrity of the marriage state because of its wholesome influence upon society. The court represents this interest of the state in divorce actions, and is in duty bound to scrutinize the testimony and proceedings with more care than in ordinary civil actions, to the end that collusion of the parties may not effect a dissolution of the marriage relation, when the real facts of the case, if known, would forbid it.

The testimony of Mrs. Weaver as set out in the information, tending to negative any prearrangement between herself and her husband, was, by this peculiar and important feature of the state's interest in the proceedings, entitled to more weight, as bearing upon her general credibility, than testimony of a similar nature would be accorded in ordinary civil actions. If false, it was a manufactured state of facts, clearly designed to induce the court to believe that the plaintiff and defendant were not acting in collusion as to any phase of the case; that they had no common interest in

Opinion of the Court-Ducker, J.

the result of the trial, and thereby to place greater credence in the plaintiff's testimony concerning the grounds of divorce. It therefore amounted to something more than that kind of trivial testimony which ordinarily will not sustain a perjury charge on account of its immateriality.

2. There is no merit in the contention of counsel for the petitioner that the information is defective in this respect because it is not alleged therein that the testimony concerning the grounds of divorce was not true.

The guilt of a person who has sworn corruptly and falsely does not depend upon the truth or falsity of the fact immediately in issue. The principal fact in issue may be true, yet perjury may be committed as to circumstances which have a legitimate tendency to prove or disprove such fact. Commonwealth v. Grant, 116 Mass. 17; Mackin v. People, 115 Ill. 312, 3 N. E. 222; State v. Wakefield, 73 Mo. 549. It is therefore of no consequence whether the grounds of divorce as testified to by plaintiff in the action actually existed or not. If the testimony upon which the assignment of false swearing is based was untrue, as charged in the information, the plaintiff is guilty of perjury for the reasons given.

We conclude that the information charges petitioner with the offense of subornation of perjury, and that he is not unlawfully restrained of his liberty.

The writ is dismissed.

COLEMAN, C. J.: I concur.
SANDERS, J.: I dissent.

REPORTS OF CASES

DETERMINED BY

THE SUPREME COURT

OF THE

STATE OF NEVADA

JANUARY TERM, 1921

[No. 2462]

IN THE MATTER OF THE ESTATE OF CHARLES F.
FORNEY, DECEASED.

[194 Pac. 331]

1. EXECUTORS AND ADMINISTRATORS-ORDER FIXING FEES OF PUBLIC ADMINISTRATOR WITHOUT NOTICE HELD CONCLUSIVE.

An order in administration proceedings, without notice to or knowledge of the public administrator or his counsel fixing their fees, was conclusive upon them.

2. EXECUTORS AND ADMINISTRATORS - PUBLIC ADMINISTRATOR HAS RIGHT TO APPEAL FROM DECREE OF DISTRIBUTION NOT AUTHORIZED BY LAW.

If the court in the exercise of its probate jurisdiction in the matter of the distribution of personalty was not authorized by law to order a public administrator to deliver money to claimants because the property was legally situated at the domicile of the intestate in another state, the administrator had a perfect right to appeal from such an order to have the decision and decree examined into before complying with the order.

3. EXECUTORS AND ADMINISTRATORS-PROBATE COURT HAS AUTHORITY TO DISTRIBUTE FUNDS LEGALLY SITUATED IN FOREIGN STATE. Court in the exercise of its probate jurisdiction has authority to distribute a fund having its legal situs in another state, but can only do so in accordance with the provisions of the law of such foreign state.

4. EXECUTORS AND ADMINISTRATORS PUBLIC ADMINISTRATOR HAD RIGHT TO APPEAL FROM UNAUTHORIZED DECREE OF DISTRIBUTION.

A court acting in the exercise of its probate jurisdiction which decreed under the lex situs a distribution of personalty