The opinion of the court was delivered by
Steele, J.I. The indictment sets out the testimony which is alleged to have been false, and also the materiality of a certain question to which it related. The testimony, as it is averred, was that Trask had paid Myrick for the sheep at a certain time and place named, under certain circumstances described. The only question which is alleged to have been material is whether Trask had paid Myrick for the sheep. Consequently the only part of the testimony which, under the indictment, was material so that perjury could be predicated upon it, was the statement that he had paid Myrick for the sheep. The time, place, and occasion of the payment, are not alleged to be material. The time, doubtless, was material in point of fact, because Trask’s liability as trustee would depend, if Ife paid the debt, on whether or not he paid it before the service upon him of the trustee process. But as the time of payment was not alleged to be material, the trial upon the indictment was bound to proceed upon the' basis that it was not material. In order to warrant a conviction upon this indictment, it was necessary to prove that the testimony was given and that that part of the testimony which is alleged to be material was false. „
He could be convicted upon the falsity of no other part of his *156testimony than his statement of payment, because the other parts, relating to time, place, and details attending the payment, are not alleged to be material. If he made the. payment at any time before he testified, there was under the indictment no material falsity in the testimony, not even if the payment was after the service of the trustee process. If he made the payment at any place, in any manner, or under any circumstances, no matter hów different from his statement, he could not be convicted, for the fact of a payment is the only fact alleged to be material. To quote from the bill of exceptions, the court told the jury that “ if before the justice the respondent claimed that he was not chargeable as trustee, and claimed his discharge on the ground that he had paid Joseph A. Myrick at White River Junction on the day they (the sheep) were started, and he testified he did so pay, and that was false and he knew it to be false, it was perjury, and the verdict should be guilty.” This gave the prisoner no chance for acquittal unless he had paid the debt just as he claimed, as to place, and occasion, and time, even though he paid it at some other time before the service of the trustee process, much less if he paid it after. And the court proceed to add that they called- the attention of the jury to the averments as to what the respondent swore, and that it was false, putting it to the jury to find whether the averments were proved by the evidence beyond a reasonable doubt. By thus pointing the jury to the averments as to the testimony and not to the averments as to what was material, the jury would inevitably be led to regard all this testimony as equally material. So if he testified that he paid on a certain day at White River Junction, and he did not pay on that day at White River Junction, he would be convicted whether the debt was paid at another time or not. The question of falsity was submitted on the broad ground of the averments as to the testimony given, when it should have been limited to what was averred to be material. It is urged that there was no evidence of any payment except at White‘River Junction on the day named. The very testimony for which the respondent was under indictment was in the nature of evidence to prove the truth of what was material in it. It is upon this ground that more than one witness *157is required to convict of perjury. Nor does this testimony cease to be evidence of the material fact in it as alleged in the indictment by proving that the immaterial part of it is false. When a man testifies that he paid a debt on a particular day, that testimony is not necessarily destroyed in force by showing that he could not have paid it on that day. The material fact may still be true. The same remarks are applicable to the receipt, and. farther, the payment by note running to Danforth J. Myrick was not such a payment as to be totally disregarded and withdrawn from the consideration of the jury.
The material fundamental question in this case, as-alleged in the indictment, was whether Trask had paid Myrick for the sheep before Trask testified. Unless the government established that it was not paid» before that time, the prosecution could not be sustained, and the question was submitted to the jury, so far as can be judged by the exceptions, without reference to this fundamental question.
II. We think there is another ground of error in this case. The respondent’s testimony was by way of disclosure as a trustee. The statute in express terms requires this testimony, whether called out by the one party or the other, to be in writing. Gen. Sts., 307, § 13, 14, 15. A part of this disclosure was taken in writing. The indictment is based upon oral testimony given upon the same occasion. Upon a trial for perjury before Park, J., reported in 25 E. C. L., 447, the prosecution proposed to prove the oral testimony, a part having been taken in writing, and the offer was refused. When a part of the testimony is written, the witness may not understand that what he says or remarks orally is evidence. Again, if the witness corrects or recants his falsehood before signing, he is not guilty of perjury; and in this case he is dismissed without being called on to sign, while having given a part of his testimony in writing he may have expected the whole would be so taken before it was relied on or considered. The testimony is not perfected.
Thus incomplete in a case in which the statute expressly requires the whole to be written, it was not testimony which the court was bound to consider, even if they might do so. In the ordinary case *158of a witness called to give a deposition, it would not be claimed that perjury could be predicated upon the statements of the witness, even in answer to inquiry while under oath, unless they were incorporated in the deposition. Here there was a deposition by way of disclosure, and the testimony complained of was not incorporated in it and the statute requires it to be in writing, as in the case supposed. It is true that in one case the trier of the fact is not necessarily present, though he may be the justice taking the deposition. But in the other, if the trier weighs the oral testimony,, he weighs testimony which, by statute, is not only irregular and informal, but, in contemplation of law, incomplete until reduced to writing and signed by the trustee. We do not think the crime of- perjury can be predicated upon it.
III. There is in this case a motion in arrest. If we'say that it would make no difference if the whole disclosure were taken orally instead of being a part m writing as in this case, the indictment might be bad for not containing an allegation that the testimony was in writing; but as the points we have decided are fatal to the prosecution, it is not important that we express any opinion upon the sufficiency of the indictment, and we reserve that question without decision and dispose of the case upon the other exceptions. The result is, a new trial is granted unless under the ruling of the court the state’s attorney prefers to enter a ml. pros. at this time.
Nol. pros, entered.