dissenting. .
I must dissent from the opinion of the majority because the trial court improperly directed the jury that as a matter of law Aguilar was under oath at the time of the alleged false statement. The elements of perjury as defined in I.C. § 18-5401 are (1) that defendant has taken an oath, (2) before a competent tribunal, officer or person, and (3) that he wilfully made a false statement (4) as to a material matter.
The state must allege and prove to the jury each essential element of the crime charged. See, e.g. State v. Dunn, 44 Idaho 636, 258 P. 553 (1927); State v. Scheminisky, 31 Idaho 504, 174 P. 611 (1918); Brooks v. U. S., 240 F.2d 905 (5th Cir. 1957).
It is plain that an essential element of the crime of perjury is that the accused shall have taken an oath before giving the alleged false testimony. Proof of the charge requires that sufficient evidence be adduced before the jury upon which it can be found beyond a reasonable doubt that an oath was administered to the defendant by some officer authorized to do so. Smith v. U. S., 363 F.2d 143 (5th Cir. 1966); Harrell v. U. S., 220 F.2d 516 (5th Cir. 1955). No fact can be taken away from the jury in a criminal case. U. S. v. Sheldon, 544 F.2d 213 (5th Cir. 1976); Roe v. U. S., 287 F.2d 435 (5th Cir. 1961).
Whether Aguilar was under oath at the time of the alleged false testimony was a question of fact for the jury and the court’s determination that he was under oath as a matter of law was plain error. See generally Goins v. Commonwealth, 250 Ky. 636, 63 S.W.2d 794 (1933); State v. Mann, 219 N.C. 212, 13 S.E.2d 247 (1941); Brooks v. U. S., supra; Smith v. U. S., supra.
I would reverse the judgment of the trial court and remand the case for a new trial.
BISTLINE, J., concurs herein. McFADDEN, J., submitted his opinion in this matter prior to his retirement on August 31, 1982.