The defendant was tried and convicted of perjury, and his punishment assessed at five years’ confine-ment in the penitentiary. There is no statement of facts in the record. The only question presented for our consideration in this case arises on the sufficiency of the indictment, and was made by motion to quash and in arrest of judgment.
The alleged perjury is charged to have been committed by the defendant in testimony given by him before the grand jury, at the spring term, 1878, of the District Court of Harrison County.
It is insisted, on the part of the defendant, that the indictment charges no offence against the laws of the State of Texas.
“Perjury is a false statement, either written or verbal, deliberately and wilfully made, relating to something past or present, under the sanction of an oath, or s.uch affirma*84tion as is by law equivalent to an oath, when such oath or affirmation is legally administered, under circumstances in which an oath or affirmation is required by law, or is hecessary for the prosecution or defence of any private right, or for the ends of public justice.” Pasc. Dig., art. 1909.
“ The oath- or affirmation must be administered in the manner required by law, and by some person duly authorized to administer the same in the matter or cause in which such oath or affirmation is taken.” Pasc. Dig., art. 1911.
“All oaths or affirmations legally taken in any stage of any judicial proceeding, civil or criminal, in or out of court, or before a grand jury, are included in the description ot this offence.” Gen. Laws 1875, p. 170.
We think the indictment charges that defendant was sworn before the grand jury in the manner required by law. It is provided by statute that when witnesses appear before the grand jury, they shall first be sworn by the foreman not to divulge, either by words or signs, any matter about which they , may be interrogated, and to keep secret all the proceedings which may be had in their presence, and true answers to make to such questions as may be propounded by the grand jury, or under its directions. Gen. Laws 1875, p. 108.
In the form of an indictment for perjury, by Mr. Arch-bold, the substance of the oath is given, and this extended oath is quite common in practice in drawing up indictments for perjury. It has, however, been held to be sufficient to allege that the defendant was. “ duly sworn,” without, describing the attendant ceremonies; and this decision, says Mr. Bishop, accords with what we have seen to be the true rule in.principle. 2 Bishop’s.Cr. Proc., 912; Tuttle v. The People, 36 N. Y. 431; The People v. Weaver, 5 Wend.-271.
If, contrary to these rules, the pleader sets out the oath more minutely than he need, or needlessly describes- the *85manner in which it was administered,'such matter' cannot generally be rejected as surplusage ; and if proof and averment do not correspond, the proceedings will fail by reason of the variance.
The indictment charges that defendant was “ duly sworn,” and ■ that the oath was duly administered by William M. Johnston, the foreman of the grand jury, who was then and there authorized to administer said oath to true answers make to all questions propounded to him by said grand jury, or under its directions. Again, if it be insisted that the identical oath taken by the defendant is actually set out in the indictment, then we say, it being the one upon which the false swearing is charged, it is sufficient; and it was not necessary for the pleader to have gone further, and shown in the indictment that defendant was first sworn “not to divulge, either by words or signs, any matter about which he may be interrogated, and to keep secret all proceedings which may be had in his presence.”
An indictment for perjury should charge affirmatively that the testimony given by the defendant, and alleged to be false, was material; or it must appear upon the face of the indictment that the matter alleged to be false was material. It is sufficient to chai’ge, generally, that the false oath was material on the trial of the issue on which it was taken. 3 Whart. Cr. Law, sec. 2263; 1 Bishop’s Cr. Proc., sec. 915 ; Smith v. The State, 1 Texas Ct. App. 620.
It appears upon the face of the indictment in this case that the false oath was material to the matter under investigation before the grand jury; and, in addition to this, the indictment charges affirmatively that the evidence charged to. be false was material. The indictment does not charge in hem verba that the defendant “committed perjury,” but it shows what he did swear, and charges that his answer (given under the sanction of an oath, duly administered).to the question asked him in a judicial proceeding, before the grand jury was wilfully and deliberately false, as he, the *86defendant, then and there well knew. The indictment alleges facts which, if true; make perjury. We believe that the indictment, is a good one.
We find no error in the record, and the judgment of the District Court is, therefore, affirmed.
Affirmed.