1. One ground of the demurrer to the special presentment was, that it did not charge that the accused intended to swear falsely. The presentment charged that the accused did “wilfully, knowingly, absolutely and falsely swear, in a matter material to the issue and point in question” (setting forth the alleged false testimony), and the accused “knew it was false at the time he so swore,” and the accused “did thereby commit wilful, intentional and corrupt perjury.” The word “wilful” is a part of the definition of perjury as contained in the statute. In common parlance, “ wilful ” means intentional, as distinguished from “accidental” or “involuntary”; in penal statutes it means “with evil intent, with legal malice, without ground for believing the act to be lawful.” Anderson’s Law Diet. 1114. In Black’s Law Dictionary, 1242, “wilful” is defined as follows: “Proceeding from a conscious motion-of the will; intending the result which actually came to pass; designed; intentional; malicious.” We can not comprehend how one can wilfully testify to that which he knows to be false at the time he testifies, without intending* to testify falsely. There was no merit in this ground.
2. Another ground of the demurrer was, that “the alleged false testimony was not material to any issue stated, or that could legally arise, in the suit alleged to have been on trial.” It is sufficient in an indictment for perjury to charge generally that the testimony alleged to have been false was in relation to *266a matter material to the point or question in issue, without setting forth in detail the facts' showing how such testimony was material. The authorities to this effect are abundant. See Wharton’s Cr. L. § 1304; Maxwell’s Cr. Proc. 416; McClain, Cr. Law, § 878; 18 Am. & Eng. Enc. L. 317, and the authorities cited. When the record does not positively show that the testimony was immaterial, an express averment that a question was material lets in evidence to prove that it was so. Whart. Cr. L. § 1304; Reg. v. Bennett, 5 Cox C. C. 207; Reg. v. Schlesinger, 10 Q. B. 670; 2 Cox C. C. 200. In the present case, if we leave out of consideration the positive allegation of materiality contained in the presentment, and- consider the alleged false testimony in connection with the other allegations, its materiality may be clearly inferred; for if, as alleged, the issue on trial when the alleged perjury was committed was the “question of the liability of the defendants to the plaintiffs upon said notes,” and “one of the points in question in determining said liability” was “dependent upon the fact whether said indorsement ‘ J. King, Pt.,’ was made before or after the maturity of said notes,” the materiality of the testimony is apparent.
3. The great weight of authority outside of this State seems to be that a general averment that the accused swore falsely, etc., upon the whole matter set forth, will not be sufficient; but the indictment should proceed by particular averments to negative that which is false, contradicting in express terms the matter alleged to have been falsely sworn to. 18 Am. & Eng. Enc. L. 316; Bish. New Cr. Proc. §§ 915, 918, 919; McClain, Cr. L. § 880; Archb. Cr. Pl. & Pr. (Pomeroy’s Notes, 8th ed.) 1733; Gabrielsky v. State, 13 Tex. App. 428; Turner v. State (Tex. App.), 18 S. W. Rep. 792; People v. Clements, 42 Hun, 353; Com. v. Compton, 18 Ky. L. Rep. 479, 36 S. W. Rep. 1116; State v. Mace, 76 Me. 64; State v. Corson, 59 Me. 137; State v. Mumford, 1 Dev. (N. C.) 519; State v. Bixler, 62 Md. 354; Thomas v. State, 51 Ark. 138. Though, under the ruling made by this court in Johnson v. State, 76 Ga. 790, it is not indispensable to the validity of an indictment for perjury that it should, after stating what the alleged false testimony ■was, in terms set out what was the truth in that regard, it is *267essential that an indictment for this offense, wanting in this respect, should, by clear and necessary implication, show what must have been the truth of the matter to which the alleged false testimony related. The decision in that case does not lay down any general rule on the subject, but simply holds that the allegations of the indictment in that case were sufficient, and that under those allegations it was not necessary to set out, in opposition to the testimony alleged to have been false, what was the truth. We do not understand that decision as holding that the simple allegation that the testimony was false is sufficient, if the testimony alleged to have been false, taken in connection with the allegation as to its falsity, does not, by .clear and necessary implication, show what must have been the truth of the matter.
4. From the presentment it appears that the material point in question in the judicial proceeding in which the alleged perjury was committed was, whether a certain indorsement set out in the presentment had been entered upon two described promissory notes before or after they had matured, the notes being dated March 4th, 1893, and due respectively one and two years after date. The presentment charged that the accused falsely swore that such indorsement was “ written on the back of said notes at the tima said notes were written, in May, 1893,” without alleging what the truth was as to when this indorsement was in fact made. In what respect this testimony was false nowhere clearly appears, either by express averment as to what was the truth, or by necessary implication from the allegations of the presentment. If an indictment the contents of which were substantially the same as those embraced in this presentment, except the portion of it setting forth the alleged false testimony, were to charge that the accused falsely swore that the indorsement was entered on the notes before they had matured, the necessary and unavoidable inference would be that th,e truth- was that the notes were indorsed after they matured; and this we understand, from the decision in Johnson v. State, supra, would be a sufficient allegation as to what was the truth of the matter. In the present case, the testimony of the accused in the case wherein he was a witness *268would have been just as material if the truth was that the indorsement was made before the notes had matured, as it would have been if the truth was that it was made after they ma tured. But it might have been false because the notes were not indorsed at the time they were written, but were indorsed some time thereafter but before they matured; or it might have been false because the notes were not written and the indorsement made in'May, 1893, but were written and the indorsement made at the time they bore date, viz., March 4th, 1893. The presentment was bad, because it neither in express terms alleged, nor by clear and necessary implication showed, when the indorsement was placed upon the notes. Such a presentment can not be treated as averring the truth to be that the indorsement in question was entered upon the notes after they matured.
Judgment reversed.
All the Justices concurring.
AI-generated responses must be verified and are not legal advice.
