¶1On Motion to Dismiss the Appeal.
¶2The ground of the motion to dismiss is that the record contains neither bill of exception nor assignment of error.
¶3The state, in this case, complains of the order of the trial judge which sustained a motion made in arrest of judgment.
¶4It is true, as alleged, that there was no bill' of exception taken, and no assignment of error filed on the part of the state, hut there was a- motion in arrest of judgment filed and overruled.
¶5The motion in arrest is confined, as to grounds, to defects of law apparent on the face of the record.
¶6It follows that, without a bill of exception or formal assignment of error, the points of law on the motion in arrest are before us on appeal.
¶7The motion to dismiss the appeal is overruled.
¶8On the Merits.
¶9The defendant was indicted for perjury.
¶10He was tried and found guilty of perjury.
¶11The district court sustained a motion in arrest of judgment, on the ground that the indictment was fatally defective because it charged no scienter, and did not charge that defendant testified well knowing, at the time he so testified, that his testimony was false.
¶12The state prosecutes this appeal.
¶13The motion in arrest in the ease in hand, which the trial judge sustained, was grounded upon the decison in State v. Brown, 110 La. 591, 34 South. 698.
¶14It may be stated at this time that in that case (State v. Brown), on the motion of the accused, no testimony at all was admitted. Afterward (as there was no averment to contradict the matter sworn to by defendant) the court refused to sustain the district attorney’s application for a nolle prosequi. The case went to the jury on the indictment, which was annulled, and the accused was released. The court afterwards held that the original bill of indictment was absolutely null.
¶15The district attorney presented another bill of indictment, in which he complied with the Revised Statutes (section 85S), which reads, “that there must be proper averment to falsify the matter wherein the perjury is assigned.”
¶16That requirement had been overlooked in drafting the first information which was filed.
¶17*1035We copy from the brief in that case:
“The trial judge was correct in refusing to receive evidence as to the falsity of the testimony of the accused, as alleged, because there was no allegation in the indictment falsifying the allegation.”
¶18The falsity of the testimony not having been alleged, the court held the indictment defective.
¶19We carried out the idea in the cited case, supra, that an indictment for perjury must set forth in some way the falsity of the statement.
¶20That a general averment that the accused swore falsely will hot suffice. In other words, that the omission of the charge of the falsity of the statement will not be supplied by the general averment directed against the false oath of the accused.
¶21That there “should be particular averment to contradict that which is false, contradicting in express terms the matter alleged to have been sworn to.” Enc. of PI. & Practice, vol. 10, p. 338.
¶22To return to the case in hand.
¶23Whenever the scienter is wanting, we consider that, under the statute which declares that there should be proiaer averment “to falsify the matter sworn to,” the indictment is bad.
¶24The false matter must be contradicted. Bishop, New Or. Prac. §§ 915, 918, 919; McClain, Or. L. § 8S0; Archbold’s Or. PI. & Pr. (Pomeroy’s Notes, 8th Ed.) 1733.
¶25The great weight of authority seems to sustain that view.
¶26The indictment in the case before us was written before the text of our decision cited supra had become known. It is. complete enough, except that the falsity is not as fully charged as it was in the cited case.
¶27The decisions of this court have gone far in holding that the guilty intent must appear.
¶28Thus it was held:
¶29“The averment in an indictment for perjury, that the defendant well knew that the said W. did not say, is a sufficient contradiction of the matter wherein the perjury is charged.” State v. Wells, Man. Unrep. Cas. 242.
¶30In State v. Gonsoulin, 42 La. Ann. 581, 7 South. 633, the indictment charged that the defendant did falsely, corruptly, knowingly, and willfully, etc., and this was held sufficient.
¶31The indictment in State v. Spencer, 45 La. Ann. 1, 12 South. 135, is very similar; also in State v. Eddens, 52 La. Ann. 1462, 27 South. 742.
¶32In the former the court said: “An indictment which uses the words ‘feloniously, falsely, corruptly, knowingly, and maliciously,’ is sufficient.”
¶33In Commonwealth v. Douglass, 5 Metc. (Mass.) 241, the court said:
“To constitute perjury the witness must willfully testify, knowing the testimony given to be false,” citing a number of authorities, and adding: “A witness, by mistake or defect of memory, may testify untruly without being guilty of perjury or any other crime.”
¶34In an old case in the history of the jurisprudence of this country, the court said:
“There is no averment, in the declaration, of science in the party who testified, that his testimony was false, without which it could not be perjury.” Page v. Camp, Kirby, 7, 8. See, also, State v. Ah Lee (Or.) 23 Pac. 429.
¶35In the state of Texas, under a statute not more specific than ours upon the subject, the court decided that:
“An indictment for perjury must aver positively that the accused had knowledge of the falsity of the statement.”
¶36The court specifically states: “There is no positive averment that the defendant knew he had undervalued the property.” State v. Powell, 28 Tex. 630.
¶37Similar view is expressed in State v. Perry, 42 Tex. 238.
¶38Most of the forms, if not all, in Archbold and Chitty, aver that defendant “well knew” the contrary of what he swore.
¶39The proposition in hand may be illustrated by reference to the kindred crime of subornation of perjury, in which the pleader is required to charge not only that the party charged with this crime knew that the testimony of the witness he is charged with having suborned would be false, but that he also knew that the witness would willfully testify to a fact, knowing it to be false. Commonwealth v. Douglass, 5 Metc. (Mass.) 241.
¶40We think it would be the better practice *1037to adhere to the views expressed in these decisions.
¶41The law and the evidence being with defendant and appellee, the judgment appealed from is affirmed.