
    STATE OF OREGON, Respondent, v. AH SAM, Appellant.
    Perjury — Variance.—Where an indictment charged a person with having sworn that he saw A. at the house of B. on a day named, and it is shown that A. was not there on that day; and testimony is produced tending to show that the defendant did not so swear, hut that instead he swore that he saw A. at the house of B. on another day: Held, that it was error to instruct the jury that the variance was not material.
    Appeal from Multnomah County.
    The indictment charges that one Han How was arrested on a charge of larceny from a dwelling-house, and at the time of her preliminary examination before a justice of the peace the appellant was called as a witness for the state, and testified that he, appellant, saw the said Han How at the house where the larceny was charged to have been committed on the thirtieth day of October, 1877, and the indictment charges that this statement was false. In this, it is claimed, consisted the perjury.
    On the trial the state negatived the allegation by proof tending to show that the said Han How was not in Portland on said thirtieth day of October, 1877.
    The appellant introduced evidence tending to prove that the appellant did not swear that he saw Han How at the place where said larceny was charged to have been committed on the thirtieth day of October, 1877, but that he did swear that it was on the twenty-ninth day of October, 1877, and that such was the fact.
    The appellant requested the court to instruct the jury that “if they found from the evidence that the defendant swore, at the time and place charged in the indictment, that the woman Han How was in the room where the larceny was said to have been committed on the twenty-ninth of October, 1877, instead of the thirtieth day of October, 1877, as charged in the indictment, then the jury should find for the defendant.”
    The court refused to give the instruction, but instructed the jury that if they did so find, then the variance would be immaterial.
    
      
      Hill, Durham & Thompson, for appellant.
    
      J. F. Capíes, District Attorney, and ML. F. Mullcey, for respondent.
   By tlie Court,

Prim, J.:

"We think the court erred in this instruction. It is true that a crime may be charged to have been committed on one day and proved to haye been committed on another. But that principle we apprehend is not applicable in this case. Here the crime was alleged to have been committed on the fifth day of November, 1877; and any other day might have been shown by the testimony, because the day on which the oath was administered was not of the essence of the crime. But the variance is one which totally changes the statement of the witness complained of from the statement alleged to be false to a statement, the truth of which is neither charged nor proven to be untrue.

The judgment is reversed and a new trial ordered.  