
    State vs. Wall.
    'The circuit judge presiding on the trial of a cause, is, under our system competentto 4ry the qualifications of jurors, who may hy him be examined on their voire dire, and if upon an issue or question of competenty and qualification, a juror wilfully and corruptly state what is untrue in a matter material to such issue, he is guilty of perjury
    An indictment against a juror alleging that he falsely and corruptly «wore upon his voire dire, that he had not formed or expressed an opinion, when in fact he had, must aver, that an issue or question of competency as to the jurors generally, or as to the particular juror, was submitted to the determination of the court.
    This was an indictment against the defendant for perjury, in swearing falsely, in a proceeding in the case of the State vs. Lester and others, tried in tbe circuit court of Giles county. The indictment contains three counts, and alleges, that the prisoner having been offered in that case, as a juror, it became, and was necessary and material to ascertain whether he had formed or expressed an opinion, as to the guilt,or innocence of the defendant on trial, and that being duly sworn, he falsely swore, that he had not formed or expressed an opinion as to the guilt, or innocence of the prisoner, when in point of fact, he had both formed and expressed an opinion, and ⅛⅜; swore falsely in that respect. There was no averment in ^her count, that an issue or question of competency as to die jurors called, generally, or as to the defendant, when he was presented, was submitted by the parties, or by either party to the determination of the court. The circuit court, on motion, quashed the indictment, and discharged the defendant therefrom. The State, thereupon brought the cause by appeal to this court.
    
      Geo. S. Yerger, Attorney General, for- the -State.
    1st. Are the facts charged in the indictment, sufficient to constitute the offence of perjury
    It is admitted that this 'could not-be a case of perjury under the statute of Elizabeth, for that statute only extends to oaths taken by witnesses, 2 Hawkins. 439., § 20. Bu.t our statute definition of perjury, is as broad as at common law, and' it ¡subsisted for the state, that whatever would be perjury at common law, will be perjury under the act of 1829, c. 183® §42.
    Perjury as defined in the statute- is “when a lawful oath or affirmation is administered in some judicial proceeding to a-person, who swears or affirms wilfully, absolutely, and falsely in a matter material to the issue or point in question, such person shall be deemed guilty of perjury.” This is substantially its definition at comm,on law. 2 RusssI on Crimes, 517. 2 Hawkins- P. C. 429/
    .’At common law, and consequently under this statute, to take a false oath in any judicial proceeding upon any point where its-administration is lawful, is perjury. 2 Hawkins P. Cr. 430, § 3. Republic v. JYewal 3 Ye§tes, Rep. 407. 2 Conn., Rep. 40. And it is perjury, although the oath be taken on, a collateral matter or branch ofajudial- proceeding, which in. no way effects the principal judgment. 2 Russel on Crimes,, 519 521, 2. Hawk. P. Cr. 430, § 3.
    The court had authority to administer the oath, because upon a question whether a juror is indifferent or not, he may be himself examined on his voir dire. Co. Litt. 158, b. and note, 287,
    
      2nd. But it is said, the judge had no authority to try tbe issue, whether the juror was indifferent or not, that triers ought to have been selected. By the law of this State, the judge is the proper person to try it. McGowan v. the State, 9 Yerg. Rep. 195. But if triors, and not the court ought to have tried the issue, the proceeding would only be erroneous, not void, and a false oath taken in an erroneous proceeding, is perjury. 10 John Rep. 167.
    3rd. It is said the indictment does'not aver that the defendant was challenged, or that there was any issue, which made it necessary for him to be sworn. The indictment alleges, that it “then and there became necessary and material to ascertain whether he had formed or expressed an opinion, as to the guilt or innocence of Lester” &c. This is sufficient, for how, could it have became necessary or material, unless he was challenged. 2 Russel on Crimes, top page 475.
    
      Combs for defendat.
    The facts alleged in the indictment, do not show that the defen’t was guilty of perjury; the indictment must aver every material and necessary fact,' nri constitute the crime. Without tbe defendant was challenged, or there was an issue to try whether he was indifferent or not, his swearing falsely would not amount to perjury, and as this is not alleged in the indictment, it follows, that he was not guilty of perjury in its legal acceptation. The judgment of the circuit court ought therefore to be affirmed.
   Reese J.

delivered the opinion of the court.

1st. The’bill of indictment does not allege that triers of the competency and qualification of jurors were ^appointed by the court, and that the defendant swore on his voir dire before them. We think this was not necessary, for as said by the court, at its last term, in the case of McGowan v. the State, 9 Yerg. Rep. 95, the circuit Judge presiding on the trial of a cause is, under our system and practice, competent to try the qualifications of juror’s, who may by him be examined on their voir dire and if on an issue, or question of competency and qualification of a juror, he, on his voir dire wilfully and corruptly state what is untrue, in a matter material to such or question oí competency and qualification, we have . , . . , J 1 no doubt it would be perjury.

2. But the indictment does not allege, that an issue or question of competency and qualification, as to the jurors called, generally, or as to the particular juror offered, was submitted by the parties, or by either party to the determination of the court. There is no allegation, that the oath was administered by the court because of any challenge or objection by the State, or the Prisoner on trial, to the competency and qualification of the juror. We think, that the indictment should show that an issue”or question of competency and qualification either of the jury generally, or of the juror in particular, who was sworn on his voir dire, was submitted by the parties to the court. The averment that the matter sworn to in a cause, became and was material, may be sufficient upon the point of materiality where it does not appear upon the face of the bill, in setting out the case, but in a case like the present, such averment cannot supply the omission to allege, that an issue or question touching the competency and qualification of the juror, was submitted to the determination of the court. Let the judgment be affirmed. The prisoner will be recognised to appear before the circuit court of .Giles county for further proceedings tobe had.

Judgment affirmed.  