(after stating ‘the facts). The court gave two instructions at the instance of the state, the first of which was objected to by the defendant. The defendant asked five instructions, the first and fourth *604of which were given, the third and fifth were refused, and the second was modified, and the defendant saved exceptions to the court’s refusal of the two and the modification of the other. In our view of the case, however, the first instruction given by the court at the request of the state, and over the objections of defendant, raises all the issues of law involved in this discussion; and, as this is properly based on the evidence, it is only necessary to discuss the evidence to determine its legal sufficiency to authorize the conviction of defendant. The defendant, Jake Leak, swore, in the trial of Dave Henry, that he did not know him, or that he was not certain that he knew him. There was no other evidence of the identity of Dave Henry with the crime charged against him, and none for any other purpose against him. The prosecution necessarily failed for want of proof. As defendant, Jake Leak, had testified before the grand jury that'found the indictment against Dave Henry, and upon his testimony that indictment was found, he was indicted for perjury in this: that on the trial of Dave Henry he (the said Jake Leak) swore that he did not know Dave Henry, as aforesaid, and that he did not know the person then presént as defendant to be Dave Henry, and did not know he was the person that had sold him the whisky, as charged; and, furthermore, swore that he had not stated before the grand jury that he knew him. It was shown that he had stated before the grand jury that he knew Dave Henry, and that he had bought the whisky from him, or words to that effect. Suppose that defendant herein had admitted on the trial of Dave Henry that he had stated before the grand jury that he knew him, notwithstanding he continued to say on the trial that he did not know him. That would not have justified the conviction of Dave Henry. Hence it was immaterial whether he admitted or denied stating what he was alleged to have stated before the grand *605jury. It was immaterial how mauy falsehoods he might tell as to previous, statements, since there was a total failure of proof against Dave Henry.
For a witness to impeach himself by contradictory statements is sometimes material, because one is guilty of perjury who in this way deprives another of the benefit of his true testimony, and thereby tends to defeat the ends of justice. But in such case it should appear that his false swearing had the effect, or might have had the effect, of influencing legitimately the determination of the issue concerning which he was called to testify.. Otherwise,'his testimony, be it true or false, is immaterial. The false swearing of defendant in the trial of Dave Henry could not have influenced the determination of the question of the guilt .or innocence' of Dave Henry the one way or the other, since there was no evidence for or against him.
Reversed and remanded.