¶1delivered the opinion of the court.
¶2Perjury by our laws is made á felony, though not one at common law. The indictment in this case does not charge that the act of false swearing was done feloniously. It is well settled that in all indictments for a felony the act must be charged to have been done feloniously. The omission of that word in this indictment renders the judgment fatally defective.
¶3The court, and not the jury, must determine whether the fact sworn to was material in the judicial proceeding in which the perjury is alleged to have been committed. The instruction therefore which submitted this question to the jury was erroneous.
¶4In trials for perjury it is not proper to instruct the jury that the law presumes the declarations of a party against *368himself to be true, when the object of such an instruction is to make the declarations evidence of the falsity of the oath. Such declarations are admissible, and their weight is to be determined by the jury. But of themselves they are not sufficient to convict one of the crime of perjury. Even when the defendant has made two distinct statements under oath, one directly the reverse of the other, it is not enough to produce the one in evidence to prove the other to be false. (Whar. Cr. Law, 761.) If the declarations of the party are presumed to be true, then the burden of proving the defendant’s guilt is removed from the State, and he is required to prove his innocence.
¶5Judgment reversed.