
    Elijah Cothran v. The State.
    1. Perjury : false swearing must not only be wilful but corrupt.— To constitute perjury, the false swearing must not only he wilful but corrupt, or intentionally false ; and it will be error therefore for the court to instruct the jury that they must convict if the false swearing be wilfully done, without stating substantially that it must also be corrupt. •
    2. Same : materiality of false testimony a question for the court.— When the record of the proceeding in which the perjury is alleged to have been committed is produced before the court on the trial for perjury, the materiality of the false statement to the issue in that cause is a question of law for the court, and it will be error to submit that question to be determined by the jury.
    3. Instructions : must be pertinent to the evidence. — Instructions to the jury must be applicable to the evidence in the cause; and it will be error for the court to give an instruction applicable alone to a state of facts Which the evidence does not tend to prove.
    4. Same : instructions must be clear, full, and distinct. — Instructions to the jury ought to be framed in clear and distinct, and not in vague and uncertain, language: they ought to explain to the jury the principles of law applicable to the facts of the cáse, and not leave unexplained principles which are necessarily involved in the verdict they are to find. It will be error, therefore, for a court to instruct a jury, on a trial of an indictment for perjury, that, if the defendant swore falsely to the statement contained in the indictment, they will find him guilty, “if the case is otherwise made out.”
    Error to the Circuit Court of Pike county. Hon. John E. McNair, judge.
    The plaintiff in error was indicted for perjury, alleged to have been committed by him as a witness in a cause tried in the Circuit Court of Pike county, wherein he was plaintiff and A. J. Andrews was defendant. That was an 'action of 'trespass to recover daipages against Andrews for taking away from Cothran a slave named Wiley in January, 1860. In said suit Cothran claimed the possession of the slave under an alleged contract of hire for the year 1860, Andrews being the owner of the slave. That case turned upon the question whether Cothran had made a conditional or absolute contract for the hire of said slave.
    
      The first count in the indictment averred that it was a material inquiry in said trespass-suit, “ whether said A. J. Andrews had hired said slave Wiley to said Elijah Cothran for the year 1860, upon the condition that the said Cothran first paid said Andrews for the hire of said slave for the year 1859and the perjury alleged was, that Cothran swore “ that he did not hire said slave from said A. J. Andrews for the year 1860 on the condition that he was first to pay said Andrews for the hire of said slave for the year 1859 ; whereas in truth and in fact he, the said Cothran, did hire said slave Wiley from said A. J. Andrews on the express condition that he was first to pay said Andrews for the hire of said slave for the year 1859.”
    In the second count it was averred that it was a material inquiry in said trespass-suit, “ whether said Elijah Cothran hired the said slave Wiley from said A. J. Andrews for the year I860 ;” and that Cothran had testified that he did hire the said slave for the year 1860; when in truth and in fact he did not hire the slave from Andrews for that year.
    Plea not guilty.
    On the trial the record of the trespass-suit of Cothran v. Andrews was read to the court and jury. It was proven on behalf of the State, that Cothran was duly sworn as a witness in that case, and that as such witness he deposed and testified, “ that he had hired a certain negro boy named Wiley from the- said A. J. Andrews for the year°1860; that said hiring was done in the latter part of December, 1859, for the sum of one hundred and fifty-five dollars and twenty-five cents; that the twenty-five cents were added because another person had offered one hundred and fifty-five dollars for the negro, and that Andrews being desirous that he, Cothran, should have the negro, if he would bid over the one hundred and fifty-five dollars, which he did by adding twenty-five cents théreto; that no person was .present when said contract was made; that it was made at his house.- That said hiring was unconditional, but that he was to pay the amount thereof at the end of the year 1860. . That he had hired said slave for the year 1859, and had not paid for the same, but that the payment of the hire for 1859 formed no part of the consideration for the hiring for the year 1860.”
    
      A. J. Andrews was then introduced and testified, that Cothran had hired the slave Wiley from witness for the year 1859, and in the first or second week of December of that year Cothran applied to him to hire Wiley for the next year, which witness agreed to do upon the condition that he (C.) would pay witness one hundred and forty-five dollars, the amount he owed for the hire of 1859, and which would be due on 1st January, 1860. The amount agreed on for the hire of 1860 was one hundred and forty-eight dollars or one hundred and. forty-eight dollars and fifty cents, (he does not recollect which,) payable at the end of that year. Amos Greer was present at the making of the contract, and the same was made while witness and Cothran were sitting on a log near C.’s house. Afterwards, during the Christmas holidays of 1859, the hire for that year still remaining unpaid,-Cothran informed the witness that he would not be able to pay the whole amount of said hiring for 1859 at the time •promised; whereupon witness agreed to take from defendant one-half of the hire of 1859, and wait until the end of 1860 for the balance; to which Cothran agreed, and promised to meet witness at Holmesville on the last day of December, 1859, and pay him. Witness went to Holmesville on that day, but Cothran did not come. Witness then allowed the slave Wiley to remain with Cothran 'another week to give him a chance to pay witness the sum last agreed on, but the defendant failed to do so; whereupon witness, on the 14th January, 1860, sent for and took away the negro without further consultation with or notice to Cothran. •Witness admitted that he went with Dennis Dunaway and others to defendant’s house some time in December, 1859, but denied that any contract for hiring was made on that day. Witness stated that, by the agreement aforesaid, the contract of hiring was not complete unless the money was paid .as agreed on.
    Cross-examined. Witness admitted that he had stated to several persons that no person was present at the making of said contract of hiring but Cothran and himself. He did not recollect ever having admitted it to Fielding Dunaway, at any time, in Holmesville. That when he made said admission he had forgotten that Amos Greer was present; but, afterwards recollecting it, lie asked Greer about it, who informed him of a good many things connected with said contract which he had forgotten.
    Amos Greer, for the State, testified that he was present at Cothran’s house in the first or second week in December, 1859, when Andrews and Oothran made a contract for the hire of Wiley for the year 1860. This witness stated the contract and the attendant circumstances “ precisely as Andrews had stated them.” He further stated that he went to defendant’s house with Andrews, but walked down the hill before the conversation about the contract was commenced, but returned while it was going on.
    John Finch, for the State, testified that he saw Oothran about the last of December, 1859, or first of January, 1860, trying to borrow money, which he said he was to carry to Holmesville the next day to pay to Andrews for the hire of a slave.
    The State here closed.
    For the defendant, Dennis Dunaway testified that between the 15th and 25th December, 1859, he offered to Andrews (who was then at witness’s house) one hundred and fifty-five dollars for the hire of Wiley for the year 1860; that Andrews said he could not hire him to witness without first seeing Oothran ; that thereupon he and Andrews went by John Cothran’s house, and thence' he, Andrews, and John Cothran went together to defendant’s house. Defendant and Andrews then engaged in a private conversation, which witness did not hear. They were outside of the yard near the horse-block. Witness and Andrews, after taking dinner with defendant, returned together, and Andrews informed him that he could not get the boy: that “ he reckoned he should let the defendant have him,” or “ reckoned that defendant would have to keep him.” Amos Greer was not at defendant’s that day, whilst he and Andrews were there.
    John Oothran, for defendant, testified that he went with Andrews and Dunaway to defendant’s as stated by Dunaway. That he was to be interested (by agreement with defendant) in the hire of the negro. He went out in the yard where defendant and Andrews were conversing about the negro, and heard nothing said about payment of the hire of 1859 being a condition of the hiring. Witness went away before the contract was concluded. Before witness left lie stated to his father, (the defendant,) in the presence and hearing of Andrews, that whatever he (defendant) did about the hiring he, witness, would be satisfied with. In a few days afterwards witness met Andrews, who informed him that he had hired defendant the negro for one hundred and fifty-five dollars and twenty-five cents, but said nothing about any condition in the hiring.
    Fielding Dunaway testified that, some time in the spring of 1860, he and Andrews were conversing in Holmesville about the trespass-suit then pending about the negro Wiley, between him and defendant, when Andrews said he had heard that John Cothran would swear that he (J. C.) was present and heard the contract between him (A.) and defendant for the hire of slave Wiley for the year 1860; that if John Cothran did swear he was present he would swear a lie, for that nobody was present at the making of said contract but himself and defendant.
    John Reid testified that, in the latter part of December, 1860, he called on Andrews to hire a negro for the year 1860, when Andrews told him he need not make any offer for Wiley, as he had already hired him to Elijah Cothran.
    A. J. Andrews was reintroduced by the State, and testified that neither Dunaway nor John Cothran was present at defendant’s house at the time he made the contract for the hiring of Wiley. That he was at defendant’s house twice in December, 18.59 ; the first time was when the contract was made, the second visit was for the purpose of ascertaining whether defendant had. made threats against the boy Wiley.
    This was all the evidence.
    The instructions are sufficiently stated in the opinion of the court.
    The defendant was convicted, moved for a new trial, which was overruled, and then sued out this writ of error.
    
      D. W. Hurst and Thos. Hoover, for plaintiff in error.
    
      T. J. Wharton, attorney-general, for the State,
   Habéis, J.,

delivered the opinion of the court:

The defendant, Elijah Cothran, was indicted in the court below for perjury, and convicted. On the trial the two first instructions asked by the State were given and excepted to. A motion was made for a new trial and refused, and bill of exceptions taken and allowed, presenting the questions now relied on for error.

The instructions were as follows:

1. “If the jury believe from the evidence that, on Wednesday last, 1860, in this court and county, the trial of the suit for damages of Elijah Cothran v. A. J. Andrews, said Elijah Cothran, being sworn, testified that he hired the negro Wiley from A- J. Andrews for the year 1860, and that the contract of hire was absolute and not conditional; that he was, first, to pay Andrews for the hire of the negro for the previous year: and if the jury then believe upon the evidence of two witnesses, or one witness and corroborating circumstances, that statement untrue, and that Cothran did not hire the negro absolutely, but on condition that he was to pay for the hire of the negro for 1859, then the defendant is guilty of perjury and the jury should so find, if they further believe from the evidence that the testimony of Elijah Cothran was material to the issue in the case between him and Andrews, and that such swearing was wilfully done.”

2. “ If the jury believe from the evidence of two witnesses, or one witness and corroborating circumstances, that the defendant was to have the slave for the year 1860, only on the condition precedent that he, Cothran, first paid for the hire of the slave for the year 1859, then, unless the condition was complied with, it did not amount in law to a hiring of the slave; and if the jury believe from the evidence that Cothran swore that he hired the slave absolutely, the jury may find the defendant guilty of perjury under the second count of the indictment, if the case is otherwise made out.”

These instructions were both erroneous. The first because it authorizes a conviction, if the jury believe that the swearing was wilful, though not corrupt. The instruction should have added the word “ corruptly ” after the word “ wilfully,” according to the language of the statute, or used other language indicating to the jury that the swearing must be intentionally false. The false swearing must be wilful, both in its falsity as well as the act of swearing.

. The instruction is further erroneous in submitting to the jury as a question of fact the materiality of the defendant’s statement on oath as witness in the trial of the case against Andrews. When the record of that suit was produced, arid the issue joined between the parties thereto brought before the court and jury on the trial of the defendant, and his statément on oath as a witness in said cause proven, its materiality to support that issue was a-question of law for the court, and not a question of fact for the jury.

The second instruction is erroneous because it is founded upon the supposition that there was evidence before the jury that defendant was to. have the slave for the year 1860 only on the condition precedent that the defendant first paid the whole hire of the slave for the year 1859 j when the evidence shows conclusively that no such contract existed between the defendant and said Andrews, but, that if such a contract was ever made, it had been changed, and a new contract made.

It is further erroneous in charging the jury that, if defendant swore that he hired the slave absolutely, the jury may find him guilty of perjury under the second count of the indictment, if the case is otherwise made out.

This latter part of the second charge, even if there had been no objection to the first, wholly omits the important qualifications, that they should also believe that the swearing was wilful and corrupt, and substitutes therefor this vague and uncertain language, if the case is otherwise made out.”

As the case must be reversed for these errors in the instructions, we forbear from any notice of the other grounds of error, which relate to the correctness of the finding of the jury in the court below.

Eor the errors in the instructions of the court above noticed, let the judgment be reversed, cause remanded, and a venire de novo awarded.  