This section provides that: "In every indictment for perjury or subornation of perjury it shall be sufficient to set forth the substance of the offense charged upon the defendant, and before what court or authority the oath of affirmation was taken, averring such court or authority to have had full power to administer the same, together with the proper averment or averments to falsify the matter or matters wherein the perjury is assigned," etc. It will be observed that by the provisions of this section it is sufficient to aver in the information that the court or authority before which the oath was taken had full power to administer the same. This section is substantially the same as St. 23 Geo. II. c. 11. Under that statute the English decisions are that it is only necessary to state the substance of the offense, the name of the court, and aver the court's authority to administer the oath. To the same effect are the decisions in this country under similar statutes. Lavey v. Reg., 17 Q. B. 496; Rex v. Callanan, 6 Barn. & C. 102; Reg. v. Dunning, L. R. 1 Crown Cas. 290; 2 Chit. Cr. Law, 507; Rex v. Dowlin, 5 Term R. 311; People v. Phelps, 5 Wend. 10; Halleck v. State, 11 Ohio, 400; State v. Maxwell, 28 La. Ann. 361; People v. Greenwell, 5 Utah, 108, 13 Pac. 89; Masterson v. State, 144 Ind. 240, 43 N. E. 138; Maynard v. People, 135 Ill. 416, 25 N. E. 740; State v. Green, 100 N. C. 419, 5 S. E. 422. While it is true that the information does not contain an express averment that the district court of El Paso county had jurisdiction of the case in which the alleged false testimony was given, it does aver that upon the trial of a certain criminal case, of which that court prima facie had cognizance, the plaintiff in error was duly sworn as a witness by the deputy clerk, and that he had sufficient authority to administer the oath. We think, therefore, that in this particular the information not only conforms to the requirements of the statute, but by necessary implication states that the proceeding in which the oath was administered was one over which the district court had jurisdiction. Nor is the information defective because of the failure to set forth how, or in what way, the evidence alleged to be false was material to the issue. It is well settled that it is sufficient if its materiality appears either from the facts alleged or by direct averment. Bish. Cr. Proc. § 915; Williams v. State, 68 Ala. 531; Dilcher v. State, 39 Ohio St. 130; People v. Brilliant, 58 Cal. 214; Gandy v. State, 24 Neb. 717, 40 N. W. 302; 16 Enc. Pl. & Prac. p. 343, and cases cited in note 1. 2 The information avers that "at and upon the trial of the issue so joined between the parties aforesaid it then and there became and was a material question whether, upon the evening of August 11, 1897, after the shooting of one A. F. Meyers by the said J. H. Cremar, and while the said J. H. Cremar was leading the said A. F. Meyers from the store in which the said shooting had oc curred, and upon the sidewalk in front thereof, the said A. F. Meyers handed to any one a pistol or revolver of any kind, saying at the time, "Take this.'" And further avers that the plaintiff in error "did depose and swear, amongst other things, in substance, We that, as the said A. F. Meyers came out of the door with the said J. H. Cremar, the said J. W. Thompson saw the said A. F. Meyers hand to some one a blue-barreled pistol, saying at the time, "Take this;'" and negatives the truth of this statement. cannot see any force in the contention of counsel that these allegations do not sufficiently charge that the plaintiff in error swore falsely "in a matter material to the issue or point in question." On the contrary, we think, under the rule announced in the foregoing authorities, these averments sufficiently charge that the false testimony was in respect to a matter material in the action in which it was given. Under these allegations evidence was admissible to show in what manner the testimony given by the plaintiff in error became and was material upon the trial of the Cremar case. The evidence introduced for this purpose was, in effect, that Cremar was charged with the crime of murder for killing one Meyers. It appeared that as an officer he did the shooting in attempting to arrest Meyers. The stenographer who took the notes of the evidence testified that upon the trial he heard the testimony given by Cremar, and that he testified, in substance, that the reason of his firing the shot was that Meyers resisted arrest, and struck him several times, and finally got him by one hand, and reached around behind, as if to pull a pistol, and that he was fearful of his own life at the time he fired the shot. It was also shown by this witness that one W. H. Ryan was sworn as a witness, and testified that immediately before the shooting by Cremar he saw the deceased, Meyers, pull from his hip pocket a revolver, and hold it up. It was also shown by the same witness that the plaintiff in error testified that he saw Meyers and the officer when they came out of the building, and saw Meyers hand a blue-barreled pistol to some one, and say, "Here, take this." As was said in Dilcher v. State, supra: "A witness may be guilty of perjury not only by swearing corruptly and falsely to the fact which is immediately in issue, but also to any material circumstance which legitimately tends to prove or disprove such fact, or to any circumstance which has the effect to strengthen and corroborate the testimony upon the main fact." It requires no argument to demonstrate that the testimony of plaintiff in error tended to corroborate the theory of the defense, and, if believed by the jury, would necessarily influence their determination as to whether or not the homicide was committed by Cremar under a reasonable apprehension that his life was in danger at the time he fired the shot. We have examined the errors assigned upon the admission and rejection of testimony, and are unable to see wherein the testimony objected to was not admissible, or that there was any error in the exclusion of that which was rejected. The twelfth and thirteenth assignments of error challenge the ruling of the court below refusing instructions 1 and 3 asked by plaintiff in error. We think the court committed no error in refusing these instructions. While the rule stated in instruction No. 1 is correct, it was fully expressed in instruction No. 9 as given by the court. The objection to No. 3 is that it included a direction to the jury to acquit defendant unless, among other things, the people had proven beyond a reasonable doubt that the district court of El Paso county had jurisdiction over the case being tried, and in which the oath was administered. From the record in the former case introduced in evidence by the people, it was clearly shown that the court had jurisdiction of that case; and there was no attempt on the part of plaintiff in error to show the contrary. If it be conceded that it is within the province of a jury to determine the question of jurisdiction,-a question which we do not now decide,-nevertheless a submission of that question under the evidence in this case was improper, since it tended to confuse and mislead the jury by creating in their minds a false impression that the court was in doubt as to the sufficiency of this proof, or that there was some evidence in the case controverting the fact of jurisdiction. The next objection relied on was the giving of instruction No. 6, which reads as follows: "The court instructs the jury that the evidence of one witness as to the falsity of the evidence upon which perjury is assigned is not sufficient to warrant a conviction. If there is but one witness testifying directly to the falsity of the evidence of one charged with perjury, there must be evidence or circumstances corroborating such falsified testimony. There is no rule by which the exact weight of corroborating circumstances · requisite to warrant a conviction can be determined, and it must be for the jury to determine whether such corroborating circumstances are sufficient to justify a verdict of guilty." The particular objection which counsel urge against this instruction is contained in the sentence: "If there is but one witness testifying directly to the falsity of the evidence of the one charged with perjury, there must be evidence or circumstances corroborating such falsified testimony." It is contended that the effect of this instruction was to convey to the jury that the burden is upon the accused to produce evidence or circumstances corroborating his testimony. It is evident that by using the word "falsified" as describing the testimony to be corroborated, instead of the word "falsifying," as should have been done, to designate the testimony of the witness testifying to the falsity of the oath, was an inadvertent error on the part of the court; and the sentence quoted, standing by itself, would have the misleading effect claimed by counsel. But we think that the instruction, taken as a whole, does not convey that idea. It expressly states that the evidence of one witness as to the falsity of the evidence upon which perjury is assigned is not sufficient; and concludes by informing the jury that it is for them to determine whether the corroborating circumstances are sufficient to justify a verdict of guilty. And, when considered in connection with the fact that the people did not rely upon the oath of one witness and corroborating circumstances to show the falsity of the statement, but upon the evidence of four witnesses, it did not mislead the jury. The next error relied on is the giving of instruction No. 8, which is substantially in the language of the information, because it leaves to the jury the question of the materiality of the alleged false testimony. That on a trial for perjury the question of the materiality of the testimony is one of law for the court is well settled, and in this particular the instruction as given was objectionable. As we have seen from an examination of the testimony, the evidence of plaintiff in error was material, and the district court would have been compelled so to charge, and must necessarily have so found in overruling the motion for a new trial; so that the submission of the question of the materiality of the evidence to the jury, they having found in their verdict that the false testimony was material, in no way prejudiced the rights of plaintiff in error. State v. Lewis, 10 Kan. 157; Montgomery v. State (Tex. Cr. App.) 40 S. W. 805. A further error is predicated upon the overruling of defendant's challenge of the juror A. L. Bateman. This juror upon his voir dire oath stated that he had formed and expressed an opinion as to defendant's guilt or innocence, and that he still held that opinion. But in answer to questions propounded by the court he stated that he could and would lay aside his opinion, and decide the issues under the instructions of the court, and upon the evidence produced, irrespective of the opinion that he had theretofore formed; and that it should not in any manner shade or color the conclusion he should arrive at upon the trial. The court thereupon overruled the challenge for cause, to which plaintiff in error duly excepted. Section 2592, Mills' Ann. St., provides that: "No person summoned as a juror in a criminal case shall be disqualified to serve as such by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused; provided, the court shall be satisfied, from the examination of the juror or from other evidence, that he will render an impartial verdict, according to the law and the evidence submitted to the jury in the trial of such cause." This statute makes the trial court So the trior of the qualifications of the jurors when challenged on the ground of having formed opinions, and it is for that court to determine, as a matter of fact, whether the juror stands indifferent; and its finding in that is conclusive, and not subject to review by this court, except in case of gross abuse of discretion on the part of that court. lander v. People, 2 Colo. 48; Babcock v. People, 13 Colo. 515, 22 Pac. 817; Jones v. People, 6 Colo. 452. Upon the showing made, we do not think the court committed any error in overruling the challenge. Upon a careful | examination of the record, and consideration of the objections so ably presented by counsel for plaintiff in error, we are satisfied that no error intervened upon the trial of the cause that would justify a reversal of the judginent, and it is accordingly affirmed. Affirmed. 1. Where the agreed statement of facts on which a case was tried in the county court fails. to show a compliance with section 801, Mills' Ann. St. (Sess. Laws 1887, p. 241), requiring all claims held by any person against the county to be presented for audit and allowance to the board of county commissioners, in due form of law, before an action can be maintained thereon, the action must fail, as such presentation is a condition precedent of the right to maintain an action on a claim in any court. 2. The appellate courts will not regard the oral admission of counsel, made below, and not appearing in the record, that a condition precedent of the right to bring an action had been complied with. 3. Objection that a claim against a county was not presented for audit and allowance before action thereon, as required by section 801, Mills' Ann. St. (Sess. Laws 1887, p. 241), can be first raised on appeal. 4. The commander of the soldiers' and sailors' home employed and paid plaintiff for one day's care of a sick pauper, who had previously been an inmate of the home, but had been discharged and refused readmittance. There was an understanding between the commander and the chairman of the board of county commissioners that the commander should try to furnish attendance upon the pauper. The chairman knew that plaintiff expected compensation for his services, but was not aware that this was expected of the board. The commissioners paid the board of plaintiff and the pauper for the full period during which plaintiff's services were rendered. Held, the county was not liable, as the facts do not constitute either an express or implied contract on the part of the county to pay plaintiff for his services. CAMPBELL, C. J. This action was begun by plaintiff, the defendant in error, before a justice of the peace of Rio Grande county, against the board of county commissioners of that county, to recover for nursing a pauper. The judgment being in favor of the board, plaintiff appealed to the county court; and the action was there tried, resulting in a judgment for him, upon an agreed statement of facts, from which, aside from formal matters, it appears that one Crowley was sick and destitute, and became a county charge, and that plaintiff attended him as a nurse for 22 days and nights., Crowley for some time theretofore had been an inmate of the soldiers' and sailors' home at Monte Vista, but was discharged and refused readmittance. He was helpless and required an attendant constantly. French, as the commander of the home, engaged the plaintiff to take care of Crowley for one day, and paid him therefor, but refused to pay him any additional compensation. There was an understanding between French and the chairman of the board of county commissioners, who was ex officio overseer of the poor, whereby French would try to furnish attendance upon Crowley. The chairman knew that plaintiff expected compensation for his services, but it does not appear that he was aware that this was expected of the board. It further appears that the commissioners paid the board of plaintiff and Crowley for the full period during which plaintiff's services were rendered. This writ of error was brought by the board to review the judgment. The first clause of section 801, Mills' Ann. St. (Sess. Laws 1887, p. 241), reads: "All claims and demands held by any person against a county shall be presented for audit and allowance to the board of county commissioners of the proper county, in due form of law, before an action in any court shall be maintainable thereon." There is nothing in the record to show that the claim upon which this action was founded was presented for such audit and allowance, and this presentation is a condition precedent of the right to maintain an action thereon in any court. Had the action originated in a court of record, where pleadings are required, the complaint must have contained an averment of such presentation, otherwise it would fail to state facts sufficient to constitute a cause of action. For the purpose of determining the sufficiency of plaintiff's case, the agreed statement of facts corresponds to, and may be deemed the equivalent of, the complaint; and, since there is an absence therefrom of a showing that this statute was complied with, the action must fail. Such is the plain meaning of our statute, and to this effect are the authorities. Board of Sup'rs of Lawrence Co. v. City of Brookhaven, 51 Miss. 68: Hohman v. County of Comal, 34 Tex. 36; Ellissen v. Halleck, 6 Cal. 386; McCann v. Sierra Co., 7 Cal. 121; Powder River Cattle Co. v. Commissioners of Custer County, 9 Mont. 145, 22 Pac. 383. Defendant in error says, however, in argument, that, as a matter of fact, this claim was presented to the board, and when the statement of facts was signed its attorney admitted that this condition precedent had been complied with. If this be true, it is unfortunate for plaintiff; for appellate courts do not regard oral stipulations of counsel, made below, and not appearing in the record. We are limited in the case at bar to the stipulation of facts, and bound by its recital; and, since it does not show a compliance with the statute, we must hold that this action was premature, and that the objection may be raised at any time. In the event of a new trial, we deem it proper to say that, on the facts as stipulated, the county is not holden. Our attention has been called to a line of cases declaring that a municipality may be liable under an implied contract for necessaries furnished and services rendered to a county charge, and to another class which lays down the doctrine that the county is bound only upon an express contract. We are inclined to the view that, in some circumstances, under our statute expressly making paupers a county charge, the county may be liable on an implied contract. But that question is not necessarily before us; for, if it be assumed that a recovery may be had upon an implied contract, the facts appearing in this record do not establish it. That the county ought to have furnished and paid for the nursing of the county charge may be, and doubtless is, true. That it did not, through its proper officers, expressly or impliedly incur the obligation to pay plaintiff, seems clear, if the agreed statement contains all the facts. The chairman of the board, it is true, knew that plaintiff expected payment for his services, but there is nothing in the stipulation to show that he supposed that the plaintiff intended to rely upon the county. If any fact other than those stipulated is to be implied from those expressed, it is that the chairman of the board inferred that the compensation would be made by French, representing the soldiers' and sailors' home, inasmuch as that official had employed and paid the plaintiff for one day's services, and the understanding between French and the chairman was that the former would at least try to furnish a nurse for the pauper. At any rate, there is nothing in the stipulation to show that the chairman of the board employed the plaintiff to give his services, or had cause to believe that the county would be expected to pay for them; nor are any facts shown which constitute an implied contract to pay. Though the amount involved is small, and the demands of humanity would seem to appeal to the board to allow this claim, we can find no justification in the stipulated facts for sustaining the judgment against the county. Upon a new trial the facts may be different. We do not, therefore, direct what judgment shall be rendered by the county court, but reverse the judgment, and remand the cause for a new trial. Reversed. (26 Colo. 539) EDWARDS v. PEOPLE. (Supreme Court of Colorado. Nov. 9, 1899.) CRIMINAL LAW-TRIAL INSTRUCTIONS - APPEAL AND ERROR-MOTION FOR NEW TRIAL - RULING EXCEPTIONS — BILL OF EXCEPTIONS. 1. Where an instruction is given orally, and the division thereof into paragraphs in the abstract was subsequently and arbitrarily made by counsel, a general objection to a paragraph of the instruction, referring to it as "Instruction No. 7," is insufficient. 2. Where error is alleged to instruction as a whole, separable parts of which are correct, the assignment is bad. 3. Where the first sentence of an instruction might be construed to mean that it was not necessary for the people to show that at least some of the cattle stolen corresponded with those described in the information, and is immediately followed by a correct statement of the law such as will disabuse the minds of the jurors of such an inference, the objectionable feature is cured. 4. Where there is no specific assignment of error on the ground that the evidence was insufficient to support the verdict, the defendant cannot be heard to allege any error on that ground, touching the ruling on the motion for a new trial. 5. In criminal cases, the motion for a new trial, the ruling thereon, and defendant's excep tions thereto must be preserved in the bill of exceptions, as they have no place in the record. Error to district court, Logan county. error. CAMPBELL, C. J. The defendant was convicted of the larceny of 24 head of neat cattle, and to reverse the sentence imposed on him has brought the case here on error. Of the errors assigned, all were abandoned by counsel for plaintiff in error at the oral argument except the two following: "(a) The court erred in giving to the jury what is now called 'instruction No. 7,' reading: "The court further instructs you that it is not necessary for you to find that all of this stock, or in fact any of it, has been proved to have been in all respects as described in the information, but it is your duty to find that some one or more of them were substantially the same. The point for you to determine is the identity of at least a portion of the property lost by McRoberts, if any was lost, with at least a portion of the property described in the information. In order to make myself clear, if it has not already been done, I further say to you that it is not necessary for the state to prove the description given to the full twenty-four head of stock named in the information, but as to that part of the case it has done what the law requires if it has prov ed that any one or more of those twenty-four head were branded and otherwise marked as described in the information. In other words, you are instructed that, when one or more articles are alleged to have been stolen, proof of any one of them is sufficient to make the case, so far as that part of the case is concerned.' (b) The court erred in overruling the motion for a new trial." 1. For the present purpose, it may be conceded that the first sentence of the abovequoted instruction, taken by itself, is an incorrect statement, in that it is susceptible of the interpretation that it was not necessary for the people to show that at least some of the cattle stolen corresponded to those described in the information. In the first place, it may be said that the plaintiff in error is not in a position to urge this objection. The charge was given orally, and apparently the division thereof into separate paragraphs in the abstract was subsequently and arbitrarily made by counsel for the plaintiff in error. The general objection, therefore, made to what is now called "Instruction No. 7," would not, under our practice, be good. But if it be conceded that this was given as a separate instruction, and designated by a number, the objection made at the time was not sufficient. Confessedly, the latter portion states the law correctly; and under rule 11 of this court (38 Pac. vi.), and under the established practice where error is alleged to an instruction as a whole, separable parts of which are correct, the assignment is bad. But, aside from these considerations, we are satisfied that the jury were not misled; for, in immediate connection with, and directly following, the objectionable feature of the instruction, the attention of the jury is specifically called three times to the proposition of law which the court was endeavoring to lay down, viz. that, in order to convict, it was necessary to find that at least a part of the property proved to have been stolen was identical with at least a part of the property described in the information. We understand the law to be, where one is charged with larceny of a number of articles, all of which are described in the same terms, that number is not descriptive, and proof of any one or more of the articles-which this record clearly shows was furnished-will sustain the allegations of the charge and avoid a variance. The concluding portion of the instruction, which is but a restatement of the proposition attempted to be laid down in the first sentence, must have disabused the minds of the jurors of any inference they might otherwise have derived from the first part that it was not necessary for the description, as laid in the information, to be met by the proof. Whart. Cr. Ev. (8th Ed.) §§ 121, 123, 125, 129, 132, 145; 1 Bish. Cr. Proc. (3d Ed.) § 488b; People v. Wiley, 3 Hill, 194, 213; Alderson v. State, 2 Tex. App. 10; Kollenberger v. People, 9 Colo. 233, 11 Pac. 101. 2. The second error assigned was not ar gued in the original brief of plaintiff in error, but was at the oral argument, and the particular error then pointed out was that the evidence was insufficient to support the verdict. There is no specific assignment of error on this ground, and the defendant cannot now be heard to allege any error touching the ruling on the motion for a new trial. Neither the motion nor the ruling, nor defendant's exception thereto, is preserved in the bill of exceptions. The established rule of this court, announced so many times, is that, in a criminal case, these matters have no place in the record, but must be preserved by bill. But, in order to affirm this judgment, it is not necessary to invoke these rules of practice; for the reading of all the evidence in the case satisfies us that every material averment of the information is abundantly established. Affirmed. (26 Colo. 542) ROWE v. PEOPLE (two cases). (Supreme Court of Colorado. Nov. 9, 1899.) LARCENY-INFORMATION-EVIDENCE -- VARIANCE APPEAL RECORD FAILURE TO ASSIGN ERROR-DISTURBING VERDICT. 1. Where the statute provides several ways in which a larceny may be committed, and the information charges in a single count that defendant did all the forbidden things, by employing the conjunction "and" where the statute used "or," a conviction is proper if there is proof that defendant committed the offense in any of the ways specified. 2. Where, it being evident from an inspection of the record in a prosecution for larceny of a horse that the variance in the name of the owner as charged in the information and as shown by the evidence was a typographical error, the district attorney, by leave of the court, withdrew the bill of exceptions and corrected the error, an objection that there was a fatal variance between the allegations and proof is obviated. 3. Where a motion for a new trial is not preserved in the bill of exceptions, it cannot be considered on appeal. 4. Where no error is assigned on the ground that the evidence was insufficient to support the verdict, and that the verdict was rendered under the influence of passion and prejudice, such questions cannot be considered on appeal. 5. Where there is evidence to support the verdict, it will not be disturbed on appeal. 6. Where the improper language alleged to have been used by the district attorney in addressing the jury is not preserved in the bill of exceptions, the objection cannot be considered on appeal. 7. Where the judge left the bench for a short time while the district attorney was addressing the jury, and went to his room, which was a few feet away, his absence was not such as to constitute reversible error. Error to district court, Boulder county. Edward Rowe and George H. Rowe were separately convicted of larceny, and both bring error. Affirmed. The above-named plaintiffs in error were separately charged by information, in the district court of Boulder county, with the larceny of a horse, the property of one Freder ick Sherwood. The first counts of the informations, omitting the formal parts, were as |