delivered the opinion of the court. This case has been argued upon a variety of questions that arise upon the record ; but as the opinion of the court upon a single question is decisive of the cause, we deem it necessary to refer to so much only of the record as will be sufficient to shew the point upon which the decision is made.
The indictment, as to the perjury, is in the following W’ords: [Here the judge recited the terms of the indictment as above set forth.] Upon the general demurrer, all defects in the indictment, both as to form and substance, w?ere put in issue. Commonwealth v. Jackson, 2 Va. Cas. 501. Whether we regard the indicltaent in this case as an indictment for perjury at common law, or for perjury under the Virginian statute, 1 Rev. Code, ch. 148. § 1. p. 571. we are unanimously of opinion that it is defective, in not setting forth the crime of perjury with sufficient direct and positive averments. An indictment upon the statute should aver that the defendant did “ wilfully, corruptly and falsely” swear or affirm, as the case may be. An indictment at common law need not contain these words ; but if they are omitted, such other words should be used in lieu of them, as will serve to shew the criminal intent, give to the indictment a precise and sufficient certainty, and apprize the defendant of the distinct charge made against him.
Judgment of circuit court reversed, and judgment entered sustaining the demurrer, and discharging the plaintiff in error from the indictment.
null.
(Note by reporter.) It has been held in Pennsylvania, that it is not indispensable, in mentioning the act of swearing, to state that the defendant did falsely, corruptly and voluntarily swear, in order to constitute the offence of perjury at common law. The allegation that the defendant did voluntarily and of his own free will and accord propose to the court to purge himself of the contempt alleged against him; and then_(after stating the oath, the matter deposed to, and wherein it was false) the concluding averment that so the defendant, by his own act and consent, and of his own most wicked and corrupt mind and disposition, in manner aforesaid did knowingly, falsely, wickedly, maliciously, wilfully and corruptly commit wilful and corrupt perjury,—did, it was considered, sufficiently assert and charge against the defendant the wilfulness, absoluteness, falsity and malice of the oath. Respublica v. Newell, 3 Yeates 407.
In Cox’s case, 1 Leach’s C. L. 71. an indictment at common law, which charged that the defendant “falsely, maliciously, wickedly and corruptly swore,” &c. was holden sufficiently to imply that the offence was committed wilfully: but it was considered at the same time, that in an indictment on the statute 5 Eliz. ch. 9. the offence must be expressly laid to have been wilfully committed.
In The king v. Richards, 7 Dowl. & Ry. 665. 16 Eng. Com. Law Rep. 314. the indictment charged that the defendant was duly sworn as a witness on the trial of I. H. “and then and there falsely and maliciously gave false testimony against the said I. H.” &c. “by then and there falsely deposing and giving in evi