The prisoner is on trial for testifying to certain facts stated in a deposition made by him before a magistrate. The truth of those stated *271iactsjis negated in the indictment, and it appeal's in evidence that they are true. As a general rule, this is certainly good shewing in defence on an indictment of this nature.
Levi House, for the State. Amos Marsh and W. C. Harrington, for the prisoner.If the prisoner was guilty of perjury in his viva voce testimony, he may yet be indicted for it. Perhaps it might have been more correct to have inserted other counts in the indictment charging the prisoner with perjury when on the stand. It would be carrying the doctrine of estoppel very far, to exclude the prisoner from shewing the verity of the facts testified by his deposition, because he falsified them by his viva voce testimony in the same cause, and thus to convict him of perjury in swearing to the truth in a deposition, and then leaye him exposed to another indictment for perjury in testifying falsely on his appearance upon the stand.
The Jury found the prisoner not guilty.”*
Reported from Judge Robinson’s minutes.