The plaintiff in error was indicted and convicted of the crime of perj ury, moved the court for a new trial on several grounds, which was refused by the court, this refusal was excepted to, and error is assigned thereon.
The charge of the court in this case is not as full and favorable to the plaintiff in error as the law requires, and he was entitled to. Under the law, in this case, the court should have instructed the jury that if defendant did testify to a fact which was not true, yet if he believed it to be true at the time, he was not guilty. In cases of this kind, the intent to testify falsely and the falsity of the testimony given must both appear.
A new trial is awarded in this case more readily, because we are satisfied that the indictment is insufficient to warrant a conviction.
Judgment reversed.