delivered the opinion of the court, January 3d 1881.
The plaintiff in error having been convicted upon two separate trials, we are bound to presume that upon the merits of the case his guilt was clearly established. ' It is of course very desirable in such cases to sustain the proceedings if it can be done. Animated by such a purpose we have expended valuable time, which we could poorly afford to spare, in an effort to sustain the indictment in this case. But it has proved a hopeless task, and with reluctance we are compelled to reverse the judgment on the sole ground that the indictment is utterly inadequate. It is written in flagrant disregard of the rules of grammar and of rhetoric. But for such defects we would not reverse if we were able to eliminate from it a definite statement of a positive offence. But that can not be done. Certain portions of the indictment are claimed to have been stricken out by the court, in the history of the case printed by the plaintiff in error, and these portions are indicated by brackets around them, and a pen stroke across them. The docket entries are not clear on this subject, but they partially sustain the allegation, and the counter statement for the Commonwealth contains no denial of it. We, therefore, assume it to be true. The contents of the indictment indicate an attempt to charge the defendant with the commission of perjury in an answer to a bill in equity. The first paragraph of the bill is a recital with a beginning hut without an ending. As it was originally drawn, and as found by the grand jury, it recited a judicial proceeding before a justice of the peace, in which Long and wife were plaintiffs and Perdue was defendant, “in which judicial proceeding the said George S. Long and Mary A. Long had previously exhibited and filed their bill in equity as plaintiffs, in the Court of Common Pleas of said county of Butler, at equity, No. 1, March *318Term” 1873, &c. This was such a confused and contradictory medley that the court below, of its own motion, struck out the allegation of a judicial proceeding before the justice. As thus amended, the first paragraph is in the following form : “ That at a certain judicial proceeding — in which judicial proceeding, George S. Long and Mary A. Long were plaintiffs, and John T. Perdue defendant, late of said county, yeoman, in which judicial proceeding,” the plaintiffs had filed their bill in equity, and, among other things, stated that the defendant held a certain lease in trust for himself and the said Mary A. Long, of'a piece of land on the Smith farm, on which an oil well was struck, which the defendant subsequently claimed as his own, and refused to recognise any interest of Mrs. Long therein, and that a conveyance of her interest was demanded and refused by the defendant, and there stops. Immediately following this in the bill of indictment as originally drawn and found by the grand jury, was an averment that, “ on the trial of the said issue between the parties as aforesaid,” although no issue whatever between any parties had been previously described or in any manner mentioned or referred to, a certain material question arose. The whole of this part of the indictment was stricken out by the court. The reason for this probably was, that the only “issue” to which this averment could possibly relate was an issue in the judicial proceeding before a justice of the peace; but as the subject-matter of the proceedings had been described as a bill in equity relating to a lease of land, it was impossible that a justice of the peace could have jurisdiction of such a proceeding, and as it was extrajudicial no amount of false swearing committed in the course of it could be the subject of an indictment. But whatever may have been the reason for striking out this portion of the indictment, there was no longer remaining in it an averment of any issue or of any material fact in controversy between the parties. The next following, being the third paragraph of the indictment, alleges in substance, though overloaded with redundant words, that the defendant, on the 20th of February 1873, appeared before the same justice of the peace before named, and produced his printed answer to the aforesaid bill in' equity, and made oath that the facts contained in the answer were true. This is the only and the last allusion to the answer or to the facts therein contained and set forth, that is to be found in the indictment. There is no allegation that the facts set forth in the answer were in any respect false or untrue, or that they were in any degree material to the determination of any matter in controversy between the parties. There are further averments in the indictment. They are introduced as follows : “ And the said John T. Perdue being so moved as aforesaid, did then and there knowingly, falsely, corruptly, wilfully, injuriously and maliciously answer, swear and depose, before the said M. S. Ray, justice of the *319peace as aforesaid, amongst other things in substance, as follows : ‘ That Mary A. Long, being the plaintiff in said bill ,was not an equal and joint owner of a leasehold estate,’ ” &c., &c., to the end. This is an allegation that Perdue -testified or deposed before the justice to the facts set out in the remainder of the indictment. It is in no respect an allegation that those or any other facts were contained in the printed answer. Of course the justice had no power to take any such testimony, except upon a proper rule or commission to take depositions, of which there is no pretence. It is amazing, but it is the fact, that the indictment does not even allege that the defendant’s oath before the justice to the truth of the facts set forth in the answer was a false oath. So that in reality, although this instrument purports to be an indictment for perjury in an answer to a bill in equity, it does not contain a.solitary averment, intimation or innuendo that any fact set forth in the answer was false or untrue in any particular. It is lamentable that the county of Butler should have been subjected to the annoyance and expense of two criminal trials upon so worthless a paper as this. It should have been quashed at once upon the hearing of the first motion to that effect, and it will be the duty of the court below to quash it now. It is impossible for us to sustain a conviction founded upon such an instrument.
Judgment reversed, and record remanded with this opinion setting forth the cause of reversal to the Court of Quarter Sessions of Butler county for further proceedings.