
    
      Thomas v. The Commonwealth.
    June, 1843.
    Perjury — Indictment — Averments — “Wilfully, Corruptly and Falsely.”* — An indictmentfor perjury in giving false testimony before agrand jury, charges that the defendant, being duly sworn, “did depose and give evidence to the grand jury in substance and to the effect following,” (stating the testimony) “which said evidence was wilfully false and corrupt, for in truth” &c. (falsifying the facts deposed to) “and so the defendant did, in manner and form aforesaid, commit wilful and corrupt perj ury. ’ ’ On general demurrer to the indi ctment. Held, here is no sufficient averment that the defendant wilfully or corruptly swore falsely, and the indictment is defective as well at common law as under the statute.
    Solomon Thomas was indicted in the circuit superior court of law and chancery for Giles county, as far back as October term 1831, for perjury alleged to have been committed by him in giving evidence before a grand jury impaneled in the late superior court of law for the said county. The indictment set forth, that on the 19th of April 1830, a grand jury being sworn in the said superior court of law, diligently to enquire &c. (stating the oath in the terms, prescribed by the statute) the said Solomon Thomas, after the grand jury were sworn, appeared in court and was desirous to go to the grand jury as a prosecutor, to give evidence of a breach of the peace alleged by him to have been committed by Isaac French in January 1830; and at his own instance he was sworn by the clerk of the court, by direction of the court, to.give evidence to the grand jury: which said clerk, by direction of the court, had full power and authority to administer such oath. And then the indictment proceeded in the following words: 1 ‘And the said Solomon Thomas, being sworn in manner and form aforesaid, did then and there go to the grand jury, and did depose and give evidence to the said grand jury in substance and to the effect following, to wit, that Isaac French, at James French’s in-796 fare, which *was in the month of January 1830, pushed on him the said Solomon Thomas for a fight, and struck him two or three times before he (Thomas) struck Isaac French, and that he (Thomas) was obliged to strike said French in order to defend himself, after having been struck by said Isaac French two or three times; which said evidence given to the said grand jury was wilfully false and corrupt, for in truth and in fact the said Isaac French, at the infare of James French in the month of January 1830, had not pushed on the said Solomon Thomas for a fight, and struck the said Solomon Thomas two or three times before the said Solomon Thomas struck the -said Isaac French, but on the contrary the said Solomon Thomas struck the said Isaac French first, when the said Isaac French did not push on the-said Thomas for a fight, and was not wanting to fight with the said Solomon Thomas: which said evidence given by the said Solomon Thomas to the said grand jury on the said 19th day of April 1830, was material in procuring the grand jury to find an indictment against the said Isaac French, for a breach of the peace, a true bill, and which the said grand jury, in consequence of the evidence- of the said. Solomon Thomas given to them, did find. And so the grand jurors aforesaid do say that the said Solomon Thomas, on the said 19th day of April 1830, did, in manner and form aforesaid, commit wilful and corrupt perjury, against the form of the statute” &c.
    (Note by reporter.) It has been held in Pennsylvania, that it is not indispensable, in mentioning' the act of swearing, to state that the defendant did falsely, corruptly and voluntarily swear, in order to constitute the offence of perjury at common la.w. The allegation that the defendant did voluntarily and of his own free will and accord propose to the court to purge himself of the contempt alleged against him; and then (after stating the oath, the matter deposed to, and wherein it was false) the concluding averment that so the defendant, by his own act and consent, and of his own most wicked and corrupt mind and disposition, in manner aforesaid did knowingly, falsely, wickedly, maliciously, wilfully and corruptly commit wilful and corrupt perjury, — did, it was considered, sufficiently assert and charge against the defendant the wilfulness, absoluteness, falsity and malice of the oath. Res-publica v. Newell, 3 Yeates 407.
    In Cox’s case, 1 Reach’s C. L. 71, an indictment at common law, which charged that the defendant “falsely, maliciously, wickedly and corruptly swore,” &c. was holden sufficiently to imply that the offence was committed wilfully: but it was considered at the same time, that in an indictment on the statute 5 Kliz. ch. 9. the offence must be expressly laid to have been wilfully committed.
    In The king v. Richards, 7 Dowl. & Ry. 605, 16 Kng. Com. Law Rep. 314, the indictment charged that the defendant was duly sworn as a witness on the trial of T. H. “and then and there falsely and maliciously gave false testimony against the said I. H.” &c. “by then and there falsely deposing and giving in 799 evidence” *&c. and so the said defendant "did in manner and form aforesaid commit wilful and corrupt perjury.” The case coming before the court of king’s bench on a rule nisi for arresting the judgment, Abbott, C. J., said — “I am of opinion that the rule must be made absolute. As to the first four counts, the obj ection is, that they do not charge that the defendant swore wilfully and corruptly, but merely that he swore falsely and maliciously. Now, according to every definition, the offence of perjury consists in swearing to some matter which is untrue, wilfully1 and corruptly. Whether the word maliciously may supply the place of one or other of these words, it is not necessary, in the present case, expressly to decide, because this indictment contains neither; but the case of Rex v. Cox, Leach’s Gr. Ca. 71. is an express authority to shew, that without one or the other, an indictment for perjury cannot be sustained. It still remains a question, whether the use of one, in the absence of the other, would be sufficient.” The other judges present (Bayley and Littledale) concurred. The case of The king v. Stephens, 5 Barn. & Cress. 246, 11 JSng. Com. Law Rep. 216, decided by the court of king’s bench at the same time with Richard ’s case, is in all respects similar to it.
    Process to answer the indictment was from time to time awarded and ineffectually issued against the defendant, and the case regularly continued, until the year 1841. Being at length arrested, he was brought into court at October term 1841; when he demurred generally to the indictment, and the attorney for the commonwealth joined in the demurrer. -The court, after argument of the demurrer, overruled the same, and the defendant thereupon pleaded not guilty to the indictment. A trial being had, 797 the jury found him *guilty, and assessed his fine to one dollar; and the court rendered judgment against him, for the said fine and the costs of the prosecution, and that he be imprisoned in the county jail for the term of one year without bail or mainprize.
    Upon his petition, the general court, at December term 1841, awarded a writ of error to the judgment.
    Stanard for the plaintiff in error: the attorney general for the commonwealth.
    
      
      Perjury — Indictment —Averments—“Wilfully, Corruptly and Falsely*. — The principal case is cited in Fitch v. Com., 92 Va. 834, 24 S. E. Rep. 272. See mono-graphic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
      Grand Jury — Evidence of Proceedings before. — The principal case is cited in United States v. Farrington, 6 Fed. Rep. 347, to the point that generally the evidence of grand jurors is competent whenever it is necessary to ascertain what was the issue or what the testimony of witnesses before a grand jury in a given case.
    
   FIELD, J.,

delivered the opinion of the court. This case has been argued upon a variety of questions that arise upon the record; but as the opinion of the court upon a single question is decisive of the cause, we deem it necessary to refer to so much only of the record as will be sufficient to shew the point upon which the decision is made.

The indictment, as to the perjury, is in the following words: [Here the judge recited the terms of the indictment as above set forth.] Upon the general demurrer, all defects in the indictment, both as to form and substance, were put in issue. Commonwealth v. Jackson, 2 Va. Cas. 501. Whether we regard the indictment in this case as an indictment for perjury at common law, or for perjury under the Virginian statute, 1 Rev. Code, ch. 148, ¡¡ 1, p. S71, we are unanimously of opinion that it is defective, in not setting forth the crime of perjury with sufficient direct and positive averments. An indictment upon the statute should aver that the defendant did “wil-fully, corruptly and falsely” swear or affirm, as the case may be. An indictment at common law need not contain these words; but if they are omitted, such other words should be used in lieu of them, as will serve to shew the criminal intent, give to the indictment a precise and sufficient certainty, and apprize the defendant of the distinct charge made against him.

*In all indictments, the offence charged should be averred distinctly and directly, and not by way of intendment or argument. In this case the indictment, after setting out the evidence given, charges that the “said evidence was wilfully false and corrupt:” but nowhere does it directly charge that the accused wilfully and corruptly swore falsely. We regard the averment (if averment it be) that the “evidence was wilfully false and corrupt,” at most as charging the corrupt oath by argument only, and not directly.

Judgment of circuit court reversed, and judgment entered sustaining the demurrer, and discharging the plaintiff in error from the indictment.  