518
Opinion of the Court
jury trial was at issue. See, e. g., Cothran v. State, 39 Miss. 541, 547 (1860); State v. Williams, 30 Mo. 364, 367 (1860); State v. Lewis, 10 Kan. 157, 160 (1872); People v. Lem You, 97 Cal. 224, 228-230, 32 P. 11, 12 (1893); Thompson v. People, 26 Colo. 496, 504, 59 P. 51, 54-55 (1899); Barnes v. State, 15 Ohio C. C. 14, 25-26 (1897).
Even assuming, however, that all the Government's last-half-of-the-19th-century cases fully stand for the proposition that the defendant has no right to jury determination of materiality, there are cases that support the other view. See Commonwealth v. Grant, 116 Mass. 17, 20 (1874); Lawrence v. State, 2 Tex. Crim. 479, 483-484 (1877); State v. Spencer, 45 La. Ann. 1, 11-12, 12 So. 135, 138 (1893); Young v. People, 134 Ill. 37, 42, 24 N. E. 1070, 1071 (1890) (approving the treatment of materiality as "a mixed question of law and fact, and thus one for the jury"). At most there had developed a division of authority on the point, as the treatise writers of the period amply demonstrate. Bishop in 1872 took the position that "[p]ractically, . . . the whole subject is to be passed upon by the jury, under instructions from the judge, as involving, like most other cases, mixed questions of law and of fact." 2 J. Bishop, Commentaries on Law of Criminal Procedure § 935, p. 508 (2d ed.). May's 1881 treatise reported that "[w]hether materiality is a question of law for the court or of fact for a jury, is a point upon which the authorities are about equally divided." J. May, Law of Crimes § 188, p. 205. Greenleaf, writing in 1883, sided with Bishop ("It seems that the materiality of the matter assigned is a question for the jury"), 3 S. Greenleaf, Law of Evidence § 195, p. 189, n. (b) (14th ed.)—but two editions later, in 1899, said that the question was one for the judge, 3 S. Greenleaf, Law of Evidence § 195, p. 196, n. 2 (16th ed.).
In sum, we find nothing like a consistent historical tradition supporting the proposition that the element of materiality in perjury prosecutions is to be decided by the judge. Since that proposition is contrary to the uniform general un-
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