To constitute perjury, there must be a wilful false oath, and, as is usually stated in the elementary books, the party must swear absolutely in a matter material to the point in question.
In the present case, the party testifying swore positively to the fact of seeing some one come out of the ship, after the ship was on fire; but who that person was is stated in no stronger language than that, “ to the best of the opinion of the witness,” it was William P. Hood. In regard to the latter statement of the witness, we think the rule stated by the presiding judge at the trial was not sufficiently favorable to the defendant. However proper it might have been as to a matter of fact to which the witness had testified absolutely, yet it would be too stringent a rule to apply to a matter of opinion. A party is not to be convicted of perjury because, in the opinion of the jury, he had no reasonable cause for the opinion he expressed. If, in his own mode of reasoning upon the facts occurring before him, he thought the person who left the ship was William P. Hood, though he might reason very poorly, and upon data which the jury might think very unsatisfactory, yet his testimony would not be wilfully false.
We do not mean to impugn the doctrine, that a person may be indicted for perjury in swearing that he believed a fact to be true which he must have known to be false, but confine ourselves to the precise case before us.
Verdict set aside.