This is a conviction for perjury. Appellant excepted to the sufficiency of the indictment upon several grounds, none of which, in our opinion, were well taken.
It appears from the indictment that the grand jury were investigating the facts attending a fight between one Adam Durham and appellant; that appellant was a witness before the grand jury and testified as to certain facts relative to the fight,, which were quite material; that certain statements made by appellant in his testimony before the grand jury were assigned for perjury.
It is contended by appellant that he being an interested party in such investigation, though he may have sworn falsely to material facts, still he was not guilty of perjury, because the indictment contains matter which is a legal defense to the prosecution. 2. Because it is not alleged that appellant voluntarily appeared and testified before the grand jury.
Are these valid objections? The first is if sustained by the record, which is not the' case. The second is not. Another position is assumed, the decision of which will determine those relied upon. It is that the statement was not made under circumstances in which it was required or demanded by law.
The position assumed is that, as defendant made the statement assigned for perjury in an investigation in which he was interested, that he was testifying against himself, and hence perjury could not be assigned upon his testimony.
To he perjury, the oath must be administered under circumstances in which an oath is required by law. (Penal Code, art. 188.) Were the circumstances such as that the law required the oath? Evidently they were. (Code Crim. Proc., art. 407.) The grand jury were regularly impaneled, were in session, and were investigating a certain transaction in which the law may *321have been violated. Before this body appeared the appellant, whether voluntarily or not does not appear. The grand jury proposed to examine him touching his knowledge of the facts of the transaction or fight. Before entering upon the examination of appellant as a witness the law required that he be sworn. Hence the oath was required by law. But it is contended that appellant was an incompetent witness. This is another question which will be noted briefly.
Opinion delivered October 31, 1888.This we take to be a correct proposition: If the witness be illegally admitted to testify, and he swears falsely, such swearing will be perjury. (Montgomery v. The State, 10 Ohio, 221; Vansanborgh v. Kirtz, 10 Johns., 166; The State v. Whisenhunt, 2 Hawks’s Law and Eq., 458.)
Says Mr. Bishop: “The witness need not have been brought into court by a subpoena, nor need he be compelled to testify; for if he does give evidence under oath, it is the same, whether reluctantly or voluntarily. And if a party becomes a witness for himself, when his testimony is not by law receivable, he may still commit the crime of perjury; though the contrary seems to have been held in one case.” (2 Bish. Crim. Law, sec. 1019.)
But, let us suppose that a witness is forced to testify before a grand jury or court to facts tending to criminate himself, and perjury is attempted to be assigned upon statements made by him under such state of case, could the prosecution be legally sustained? We think not. This state of case, however, does not appear, and if these were the facts in this case, it not appearing in the indictment, appellant should have shown the facts.
There is no statement of facts, and it will not be presumed that the grand jury violated the plain provisions of the law and compelled the accused to criminate himself.
We find no error in the record, and the judgment is affirmed.
Affirmed.