Our statute declares that "lawful oaths for the discovery of truth and establishing right are necessary and highly conducive to good government, and being most solemn appeals to Almighty God. * * * * Such oaths ought to be taken and administered with the utmost solemnity." This "solemnity" applies not only to the substance of the oath, but to the form and manner of taking it, and of administering it. And therefore the statute further provides that the Judge, or either person administering it, "shall require the party sworn to lay his hand upon the holy evangelists of Almighty God, * * * * and after repeating the words, so help me God, shall kiss the holy gospels as a seal of confirmation to the said engagements." Rev. C. Oaths. After this manner every witness in North Carolina must be sworn. And a wilful violation of such an oath in a material matter is perjury, and no other is. This is the general rule. The only exception is "when the person to be sworn shall be conscientiously scrupulous of taking a book oath in manner aforesaid, he shall be excused from laying his hands upon or touching the holy gospels * * * and he shall stand with his right hand lifted up towards heaven," c. And Quakers and some others who have conscientious scruples about swearing at all, are permitted to "affirm."
If the usual form of oaths upon the holy evangelists is *Page 386 dispensed with, and an "appeal" or "affirmation" is substituted, it must appear that the person sworn had conscientious scruples; else the "appeal" or "affirmation" is invalid.
This much has been said because of the general and solemn importance of the subject, and because his Honor seemed to be of the opinion that an oath valid for any one person was valid for every other person.
The indictment charged that the defendant was sworn "upon the holy gospels." His Honor charged the jury that they might convict him "if he was sworn in any manner known to the law." We are to take it that this meant that they might convict him if it appeared that he was not sworn upon the holy gospels as the indictment charged, but was affirmed as a Quaker. And this is clearly in violation of the rule that the probata and allegata must agree. We suppose that his Honor's idea was that as falsehood was thesubstance of the offense, the form of the oath was immaterial. But experience, precedents and practice all teach the value of certainty and precision in legal and especially in criminal proceedings. If one is charged with killing another with poison it will not be sufficient to prove that he killed him with a sword.
The following is a quotation from 2 Chit. Cr. L. p. 309; "And if he were sworn twice, first in the usual form, and afterwards after his own method, to state that he was sworn on the holy gospels of God will suffice, though had he been sworn only in the latter way the variance would have been fatal."
So in our case he is charged with having been sworn upon the holy gospels, and as we are to take it from the charge it appeared that he was not sworn as charged, but in some other way. The variance is fatal.
There are several other points in the case, but as this *Page 387 entitles the defendant to another trial, it is not necessary to notice them.
There is error.
PER CURIAM. Venire de novo.