Opinion by
Mr. Chief Justice McBride.
1. The evidence of more than one witness tends to show that the defendant, within the dates concerning which lie was interrogated, played poker for money in Miller’s building, and the evidence of members of the grand jury tended to show that he testified before the grand jury that he had not seen such a game played for money during such period. The fact, if [384]*384it be a fact as lie alleges, that he was hard of hearing, and did not fully understand the questions put to him when before the grand jury, would tend to explain away the charge of making a willfully false statement before that body; but this was a question of fact to be decided by the jury, and, where there is any competent evidence tending to prove the offense, we are prohibited by Article VII, Section 3, of the Constitution, as amended (Laws 1911, p. 7), from disturbing the verdict: State v. McPherson, ante, p. 381 (138 Pac. 1076), and cases there cited.
2,. 3. The testimony was material. It is the duty of the grand jury to inquire into all offenses committed within the county, and in order to determine whether or not an offense has been committed, it is their duty to examine witnesses. Testimony taken for that purpose is material, irrespective of whether or not an indictment is found, and even as to whether the party whose conduct they are investigating is innocent or guilty. The statute does not require the clerk of the grand jury to make a record of all the evidence produced, or of any of the evidence; and, if such evidence is reduced to writing, such writing is only a memorandum from which the clerk may refresh his memory. It is not original evidence. The court therefore did not err in permitting the clerk and other members of the grand jury to testify from independent recollection as to what the defendant actually testified before the grand jury. While such evidence should be received with caution as the divergence in recollection between different members of the grand jury in the case at bar forcibly emphasizes, this goes only to its weight and not to its admissibility.
The judgment is affirmed. Aeeirmed.
Me. Justice Bean, Me. Justice Eakin and Me. Justice McNary concur. Free access — add to your briefcase to read the full text and ask questions with AI