¶1The 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. •
¶2The instructions were as follows: 1. “ If the jury believe,' *1387from 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.”
¶32. “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.”
¶4These instructions were both erroneous. The first, because it authorizes a conviction if the jury believe that the swearing was wilf ul, 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.
¶5The 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, and the issue joined between the parties thereto brought before the court and jury *1388on the trial of the defendant, and his statement 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.
¶6The 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 sime for the year 1859; and 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.
¶7It is further erroneous in charging the jury that if defendant swore that he hired the slave abs.olutely, the jury may find him guilty of perjury under the second count of the indictment, if the case is otherwise made out.
¶8This 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 a/nd corrupt, and substitutes therefor this vague and uncertain language, “ if "the case is otherwise made out.”
¶9As 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. . .
¶10For the errors in the instructions of the court above noticed, let the judgment be reversed, cause remanded, and a venire de novo awarded.