The State then read the paper in evidence. It was as follows: "Statement of William Donoughoe. About the first of January, 1882, I was in company with Robert Weir, Alexander McGloin, L. O'Docherty. Willie O'Docherty was shooting off his pistols over Alexander McGloin's horse's head, across the road, before and at the time the wagon passed by where we were standing. The horse was on the same side of the road that Willie O'Docherty was on, and I knew nothing about the mules being shot.

"WILLIAM DONOUGHOE."

Webb Sullivan testified, for the State, that he was a member of the grand jury before which the defendant testified concerning the shooting of the mules. Mark Mahony was the clerk chosen by the grand jury, but Mahony being absent, the witness wrote the statement in evidence signed "William Donoughoe." The paper exhibited was the same, and it contained a substantial statement of the testimony of the defendant before the grand jury. After the body of the paper was written, the defendant signed it.

Robert Weir testified, for the State, that he was with the party at the time the mules were said to have been shot by Willie O'Docherty, about three-quarters of a mile from San Patricio. The party consisted of Willie and L. O'Docherty, the witness and the defendant. They were traveling in the direction of San Patricio, and had been drinking freely. This party met Alex. and Pat. McGloin on the road. Alex. McGloin had been drinking. "Christmas times were near on hand, and the whole party were pretty full," including the defendant, who, however, was not drunk. Willie O'Docherty fired his pistol over Alex. Mc Gloin's horse's neck before the wagon and mules came up. The witness and McGloin were standing on one side of the road, on horseback, when a wagon drawn by two mules drove up. Willie O'Docherty and the accused were together down the road towards town, about twenty yards from the witness and Alex. McGloin, when the wagon and mules, driven by George Milstead drove up. The witness then heard two more shots fired, and the mules and wagon went on. At this time the witness and Alexander McGloin were on the opposite side of the road from the defendant and O'Docherty and Alex. McGloin's horse was not on the same side of the road with O'Docherty and the defendant. The witness did not see O'Docherty shoot the mules. He saw no mules shot on that occasion, and knew nothing about the shooting of any mules, except by hearsay. He did not know whether or not the defendant saw any mules shot.

George Milstead testified, for the State, that in December, 1882, he worked for Mr. Sullivan. During that month he was sent to old lady Sullivan's, in San Patricio, with some hogs, in a wagon drawn by two mules. On his way he met Alex. and Pat. McGloin and Robert Weir, 2 DEFENCES.

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on the left side of the road, and saw the defendant and Willie O'Docherty on the right-hand side of the road, about fifteen yards from the others. O'Docherty exclaimed: "You man with the black mules, stop!" The witness did not stop, and O'Docherty fired and shot one mule through the main and neck, and then fired again and shot the other mule in the foot. One of the mules staggered, fell, jumped up, and both ran down the road with the wagon. The witness, before he reached the party, saw the defendant hand Willie O'Docherty a pistol. The witness knew that the defendant did see O'Docherty shoot the mules, because he and O'Docherty were very close together at the time, on the same side of the road, and within two yards of the mules.

The questions passed upon in the opinion were among those raised by the motion for new trial.

P. O'Docherty, for the appellant. J. H. Burts, Assistant AttorneyGeneral, for the State.

HURT, J. This was a conviction for perjury. It was objected to the indictment that the perjury is not properly assigned.

We have subjected this indictment to the rules laid down by Mr. Bishop, and enunciated in Gabrielsky v. State, and find that it is not obnoxious to the objection urged against it by the defendant.1

The indictment in hand charges that certain testimony given before the grand jury was material; that is, the substance of what was sworn to by defendant, and then avers that, "whereas, in truth and in fact,” stating wherever such matter was false, and thus assigning perjury. The matter averred to be material is charged to have been testified about, or in regard to, by defendant; his testimony is set forth in substance, and then the indictment proceeds to negative (not by simply saying that the defendant falsely swore to such matter, but in the proper form) the truth of the facts sworn to by defendant, by averring that "whereas in truth and in fact," stating that such facts sworn to by defendants were false. We are of the opinion that there is an assignment of perjury formally made in the indictment.

The materiality of the false testimony must be alleged, either in terms or by setting out the facts from which its materiality in law will appear. And every fact sworn to, upon which an assignment of perjury is desired to be made, must be averred to be material.

To present this rule in another light: No false testimony can be included in the assignment of perjury, unless its materiality is alleged. We are not treating of inducements, innuendoes, or the admissibility of evidence, but of the proper mode to assign perjury. With these rules firmly in hand let us see what is assigned for perjury in this indictment.

12 Bishop's Proc., secs. 918, 919; Gabrielsky v. State, 13 Tex. (App.) 428.

It alleges that," it became and was then and there a material question whether or not Willie O'Docherty had willfully shot two certain mules in said county, on or about the first day of January, 1882." All of the matters and things contained in the quotation are averred to be material; and upon all, or either of these, perjury can be assigned, but upon no other matter. no matter not contained in the averment of materiality. In regard to what particular matter did the defendant swear falsely? This is learned from what the defendant is charged to have sworn, and that which is alleged, in proper form, to be falsefrom what is known in legal parlance as the assignment of perjury. The matter upon which perjury is based is specifically selected, pointed out, and assigned for perjury; thus, by this contracting process, informing the defendant "wherein and to what extent the statements alleged to have been made by him were false, that he may know with certainty what he is called upon to answer." All of the matters alleged to be material can be made the basis of perjury, by proper assignments of perjury. But, if a general assignment is made upon all, and some of them should, in law, be immaterial, the assignment would be bad. Hence, when matters are alleged to be material which are not, in conjunction with matters which are, the absolute necessity of specific assignment of perjury upon the material matter is apparent.

In the indictment before us perjury is assigned upon matter which is not alleged to be material, as well as matter averred to be material. Upon this state of the pleadings the learned judge below charged the jury as follows:

"Seventh. If, in view of what has been said by the court as to the law, and from all the evidence before them, the jury believe that the defendant, in San Patricio county, did, as charged, deliberately and willfully make the statement set out in the indictment, or any part thereof that the jury believe to have been material to the matter before the grand jury, and if such statement or part thereof is shown (to) have been false when it was made, and if the jury believe the defendant knew it was false when he made it (if he did so), and if they further believe he made such statement before the regular grand jury of this county, as alleged, and under proper oath duly administered to him, then they should find him guilty as charged, and in addition assess his punishment at confinement in the penitentiary for not less than five years, nor more than ten years, in the discretion of the jury."

The jury are told in this seventh paragraph of the charge that if they believe that defendant made the statement, or any part of the statement set out in the indictment, etc. As the indictment charges defendant with making statements not alleged to be material, this charge is most evidently wrong. The trial judge should examine the indictment

and ascertain upon what false testimony a good assignment of perjury has been made, and confine the jury to such assignment or assign

ments.

The indictment may, and frequently does, set out "' statements charged to have been made by defendant, without making or a desire to make them the basis of perjury. The false statement or testimony to which the jury must be confined is that which is properly assigned as perjury. And unless assigned, the fact that the statement or testimony is false does not affect the question.

Again, in this seventh paragraph of the charge, and elsewhere, the jurors are made the judges of the materiality of the testimony. This is error, for the judge, and not the jury, is to pass upon the materiality of the (statement) false testimony..

If perjury is assigned upon immaterial matter, and the trial judge in his charge submits this matter to the jury, and hinges the guilt of defendant upon the issues therein found, the conclusion is that the judge believed the matter material. In other words, the charge of the court

is an infallible test as to whether the trial judge holds matter or testimony material or immaterial.

We have held this indictment sufficient, but we think it necessary to state upon which assignment it is sufficient. We are of the opinion that the last assignment suffices, to wit: "Whereas in truth and fact the said William Donohoe was then and there present, and did know that the said Willie O'Docherty did then and there deliberately shoot said mules." This matter is averred to be material, and in regard to said matter it is alleged to be deposed, and we think it is properly assigned for perjury.

Because of the error in the charge of the court, the judgment is reversed and the cause remanded.

Reversed and remanded.

PERJURY-FRAUDULENT INTENT NECESSARY.

UNITED STATES v. STANLEY.

[6 McLean, 409.]

In the United States Circuit Court, Indiana, 1855.

1. To Constitute Perjury the false statement must have been willfully and corruptly made. 2. Where Perjury is Charged on a Written Affidavit, and it appears clearly from several witnesses that the afliant stated the facts truly, and was advised that they were substantially the same as stated in the writing, by a lawyer in whom the affiant confided and he yielded to such influence in taking the oath, it is not perjury, the guilty motive being wanting.

District Attorney of the United States, for plaintiff.

Messrs. Walpole, for defendant.

MCLEAN, J. This is an indictment for perjury, under the thirteenth section of the act of Congress of the 4th September, 1841, for swearing falsely to establish a pre-emption right, which, by that act, is made perjury. The act of the 3d of August, 1846, provides" that every actual settler, being the head of a family, or widow, or single man over the age of twenty-one years, who is now in possession, by actual residence as a housekeeper, of any tract of public land within the limits of the several cessions by the Miami Indians, in Indiana, which have not yet been proclaimed for sale by the President, or any such person who shall hereafter erect a dwelling-house and become a housekeeper upon any such tract of land, shall be entitled to the same benefits and privileges with respect to said land, as were granted to settlers on other lands, by the act approved June 22, 1838, entitled an act to grant preemption rights, and the several amendatory provisions of said act," etc.

And in the second section of said act, it was provided "that in every case, the affidavit of the claimant under that act should be like unto that prescribed by the act of the 22d June, 1838, and the same shall be filed, and proof and payment made for the land claimed, at any time before the day fixed by the President's proclamation for the public sale of said land."

The written affidavit was read on which the perjury was assigned, and which was made and filed by the defendant, at the time of application to the Register of the Land Office for the pre-emption. A preemptive right to a quarter section was claimed on the ground that John Stanley had built a dwelling house on the same, which he with his family occupied, within the above cession of the Miami Indians. This affidavit was made the 23d March, 1854.

It appears from the testimony that a man by the name of Majors, and hands employed by him, entered upon the land in controversy, on the 13th March, 1854, cut logs for a cabin, and the next day it was built up to the roof. Finding the building in this condition, John Stanley, the brother of defendant, came to the cabin with his loaded wagon and entered into it, by cutting a door, and had it covered with materials which had been prepared by Majors.

When Majors returned to finish the house, he found the defendant in possession of it, who said that his brother had gone to the land office to enter the land, and he remained to protect the possession. Majors entered into the house and his trunk was handed in. His entry was resisted by defendant, and finding that he could not stay there, Majors took possession of another quarter section.