
    State v. Tappan.
    An indictment, upon Gen. St., c. 259, s. 3, for attempting “ to procure another to commit perjury,” should, expressly or otherwise, allege the materiality of the testimony which the defendant solicited. The allegation of facts which show that the testimony probably was material, is not sufficient.
    Indictment, upon Gen. St., c. 259, s. 3, for attempting to procure certain persons to commit perjury. The indictment sets forth the testimony which the defendant is accused of attempting to procure, but does not expressly aver that it was material. The facts alleged show that it probably was, but not that it must have been, material. The defendant demurred.
    
      Copeland, for the defendant,
    cited 8 Gratt. 629 ; People v. Collier, 1 Mich. 137; State v. Norris, 9 N. H. 96 ; State, v. Dodd, 3 Murph. 226 ; State v. Wall, 9 Terg. 347; Hindi v. State, 2 Mo. 158 ; State v. Hayward, 1 if. & McCord 546; Weathers v. State, 2 Blackf. 278; 
      Com. v. Knight, 12 Mass. 277 ; Com. v. Pollard, 12 Met. 229 ; Com. v. Byron, 14 Gray 31; Wharton Cr. L., s. 2263 ; 2 Russell on Crimes (7th Am. ed.) 639, 642.
    
      Carter, solicitor, for the state,
    cited Slate v. Holding, 1 McCord 31; 2 Arch. Cr. L. & PI. 1749, 1750, notes; State v. Keyes, 8 Yt. 57; State v. Carpenter, 20 Yt. 9.
   Doe, C. J.

The statute might be violated by an attempt to procure the commission of perjury, without a specification of the desired testimony. If the defendant did not know what particular evidence he wanted, its materiality might be proved. It would not be presumed that he wanted, and intended and was understood to solicit, proof of something immaterial. But, whether the evidence solicited is known or unknown, and whether it is or is not set forth in the indictment, its materiality must be proved, and must- be alleged expressly, or otherwise. The allegation of facts which show that the testimony probably was material, is not sufficient.

Demurrer sustained.

Bingham, J., did not sit.  