
    The State v. Casper Helle.
    
      Tried before Mr. Justice Martin, at Charleston, Spring Term, 1833.
    Perjury cannot the “affidavit naturaUzattonas to his residence v¡ousetot!thePap-plication. The ofiml^xprósS iy excludes the pUcan/ on this tbr”1’ voluntar" aUdimmateriaiT
    This was an indictment for perjury in an affidavit filed with petition, by the defendant to the Court of Common Pleas, '^01' naturalization under the Acts of Congress. The peijury was assigned on the defendant’s oath, that he had resided in ^be ®tate two years previous to his application. The jury found a verdict of guilty, and the defendant appealed on several grounds : the only one, however, which it is necessary to notice, and that on which the case was decided, was in arrest of judgment: — That peijury cannot be assigned on the oa^> as ^ -*s immaterial, because the Act of Congress expressly excludes the oath of the applicant as evidence of his residence.
    i Brev. Bis. 14.
    
      Bailey, for the motion.
    
      Smith, Attorney General, contra.
   Harper, J.

we are clear that the motion in arrest of judgment, must be granted. The Act of Congress of 1802, is express that the oath of the applicant shall, in no case, be allowed to prove his residence. It might be argued, as in the case of Vanstenburgh v. Kortz, 10 Johns. 175, in which an attachment was granted on the oath of the party, who was not competent to make it, that if a witness incompetent from interest or any other cause is sworn on a trial, or if a party be examined in his own cause and swear falsely, he is no less guilty of peijury than the most competent witness. This is true, but 1 cannot suppose that the oath of the defendant was received in support of his application. It is made the duty of the Court not to receive it — other evidence, such as the act allows, was annexed to the- application ; and I cannot suppose that the Court at all considered the defendant’s oath, or that it had any effect in supporting the application. It was merely voluntary and impertinent; as if a party filing a declaration in the Court of Common Pleas, should think proper to make oath of its truth. The motion in arrest of judgment is granted.

Johnson & O’Neall, Js. concurred.  