
    Steinston vs. The State.
    In an indictment for perjury, an omission to charge in the bill of in dictment, that the matter of traverse tried between the State of Termes see and D, touching which the defendant gave his evidence, was by in dictment or presentment, is fatal.
    An indictment for perjury, on the trial of a State prosecution, must show that the swearing was in a traverse, of which the court trying it had jurisdiction.
    When an indictment charged the defendant with perjury in “a matter of traverse then and there tried, between the State of Tennessee and D, for an assault and battery:” Held, that this was not a sufficient charge of the jurisdiction of the court before which the case was tried.
    Intendment on an indictment for perjury will not be allowed to sustain the prosecution.
    The indictment in this case charges the defendant with committing perjury “in the issue of traverse joined between the State of Tennessee and Matthew P. Dunn, tried in the county court of Weakley county, for an assault and battery.” The indictment does not charge that the issue of traverse joined between the State and Dunn, touching which the defendant gave evidence, was by indictment or presentment. The defendant pleaded not guilty, upon which issue was taken. The jury returned a verdict of guilty. The defendant moved the court to arrest the judgment, and the court having refused to arrest said judgment, defendant appealed in error to this court.
    
      H. A. Garrett, for the plaintiff in error!
    The indictment in this case does not show a case of traverse, touching which the defendant was sworn, over which the court trying it had jurisdiction; nor does it show that the traverse between the State and Dunn was by presentment or indictment. These important charges are left merely for inference, which cannot be resorted to in aid of a criminal prosecution. 2 Chit. Cr. L. 287, 432, 433 435; ’ 3 Term Rep. 311: 1 Croke’sRep. 148.
    
      A. B. Bradford Attorney General, for the State.
    It is not material to charge, in an indictment for perjury, whether the traverse was by presentment or indictment. It is substantially shown that it was a prosecution against Matthew P. Dunn according to law, in the county court, upon a certain matter of traverse joined between the State as plaintiff and Matthew P. Dunn, defendant, on the charge of an assault and battery. See Puller’s opinion, 3 Term, 319.
   Peck, J.

delivered the opinion of the court.

The omission to charge in the bill of indictment, that the matter of traverse tried between the State of Tennessee and Dunn, touching which the defendant gave his evidence, was by indictment or presentment, is fatal. The indictment in this case should have shown a case of traverse over which the court had jurisdiction. It does not necessarily follow that the court had jurisdiction of the matter of traverse then and there tried for an assault arid battery. Nothing but inference could sustain the indictment, and we must not be driven to intendment to support prosecutions on behalf of the State. This judgment must be reversed, and judgment on the finding of the jury arrested, and the defendant recognized to appear and answer, &c.

Judgment reversed.  