The law of the United States defining perjury, (section 5392, Rev. St.) provides, in substance, that if any one, in taking an oath before a tribunal or officer competent to administer it, in a material matter, willfully states or subscribes what is false, believing it to be contrary to the truth, he shall be guilty of perjury, etc.
As to the first objection to this paper, denying the power of a notary public, commissioned by a state, to administer an oath required by a law of the United States, this is settled by the act of August 15,1876, which expressly authorizes a notary public to administer any such oath as might then have been administered by a commissioner of a circuit court of the United States; not only such oaths as are to be “used in the courts of ¿the United States,” but “acknowledgments and affidavits” also.
This act enlarges section 1778 of the Revised Statutes, which had previously given commissioners of the circuit courts general power to administer oaths in all cases in which justices of the peace and notaries might before then have administered them.
The second and third objections to the paper offered by the prosecution rest upon the ground that the paper varies from the certificate referred to in the indictment, and which is alleged there to have been the instrument by which the notary certified to the comptroller of the currency the fact that the director’s oath had been taken by the accused as required by law.
It must be observed that the act defining perjury provides that it may be committed by willfully stating what is false and what the affi-*770ant 'does not believe to be true, or by willfully subscribing the same. If this indictment had looked to the latter alternative and charged throughout that the accused subscribed what was false, believing it to be false, the objection of variance between the paper now offered in evidence, containing in that case the corpus delicti, and the paper described in the indictment, could be urged with some force. But the indictment nowhere charges that the accused subscribed a false oath¡ It was drawn by a skillful and experienced pleader, now the president of the supreme court of appeals of Virginia. Its charge throughout is that the accused, in taking the oath required of him as a director by section 5147 of the Revised Statutes, relating to national banking associations, said and stated that he owned the shares of stock standing in his name on the books of the bank, and had not hypothecated' or pledged them, and that he in fact had pledged them absolutely.
Now I have no doubt that this paper may go to the jury from the hands of the notary who took the affidavit of the accused, corrected, as to the errors appearing upon its face, by the testimony of the notary, examined under oath before them, — to show what oath was taken by the accused; the date on which it was taken; the exact tenor of it; that it was taken in the city of Alexandria; and what the accused stated in making the oath, — the witness, K. Kemper, having already shown that he was a notary public for the city of Alexandria, duly commissioned and qualified under the laws of Virginia.
The prosecution is proving its case as charged in the indictment. That instrument makes no charge as to subscribing falsely, but confines itself to the charge of stating falsely. What it alleges as to the certificate having been transmitted to the comptroller of the currency is matter of recital and surplusage. It is competent to prove the charge that the accused had stated falsely by testimony, either oral or written. The notary, who remembers the occasion and circumstances of administering the oath, may certainly refer to this paper as a memorandum for refreshing his memory as to the date and tenor of the oath; and, moreover, if he explains to the jury that the word county was erroneously used in making out the certificate instead of city, and that the seal of the bank was inadvertently em- ' ployed instead of his own official seal, the paper thus corrected may go to the jury as part of the evidence adduced to show that the accused in fact took the oath charged, where he took it, when he took it, and the precise tenor of the oath taken.
*771When the evidence was concluded, counsel on either side prayed respectively for instructions to the jury. The court substituted for both the following, drawn by the judge himself:
1. The court instructs the jury that K. Kemper, as a notary public for the city of Alexandria, was authorized by law to administer the oath required by law to the accused, as a director in the First National Bank of Alexandria, on the eleventh day of January, 1882.
2. It instructs the jury that if such an oath as is required by law was administered by the said K. Kemper, as such notary public, to the accused, and was taken and subscribed by the accused, then the oath was complete when so taken, so far as the accused could make it so; and if the said K. Kemper, the said notary, in certifying the fact of the oath having been taken to the comptroller of the currency, erroneously used the term “county” instead of “city,” and used the seal of the said bank instead of his own official seal, such errors only affected the certificate of the notary, and did not affect the oath taken by the accused.
3. The court instructs the jury that if the accused, on the said eleventh of January, 1882, as a director of the said bank, before the said K. Kemper, as notary public for the city of Alexandria, took an oath, in which he stated that he was the bona fide owner in his own right of the number of shares of stock then standing in his name on the books of the said bank, and that the said shares were not hypoth-ecated or in any way pledged as security for any loan or debt; and if the accused, in taking such oath, did so willfully, not believing that he was stating the truth, — then he committed perjury, if, in point of fact, he was not the owner of the said shares of stock, or had hy-pothecated or pledged them as security for a subsisting loan or debt.
4. The court instructs the jury that the irrevocable power of attorney, dated March 13, 1880, which was given in evidence, purporting to be signed by the accused, whereby he constituted and appointed William Graydon his attorney for the purposes therein set forth, was a general power covering any indebtedness of the accused to said Graydon, and bound the 60 shares of the stock of the First National Bank of Alexandria, belonging to the accused, mentioned therein, if there was any debt due by the accused to the said Graydon on the eleventh of January, 1882.
See U. S. v. Bartow, 10 Fed. Rep. 878; U. S. v. Baer, 6 Fed. Rep. 42; U. S. v. Ambrose, 2 Fed. Rep. 556.