delivered the opinion of the court.
The defendant was convicted in the District Court of Aguadilla of the crime of perjury and appeals to this court. The information charged that the appellant while under oath to tell the truth, all the truth, and nothing hut the truth, voluntarily and maliciously declared as true the material (esencial) fact that Miguel Concepción Ferreris should be excluded from the registration lists of the precinct because the latter had been away from the municipality (i. e. Aguadilla) for more than one year, knowing its falsity. The trial was had before a jury and the instructions of the court and a statement of the case came up with the record.
The facts shown by the prosecution at the trial were that Miguel Concepción Ferreris lived in Aguadilla in the months of June and July of 1908, his name being included in the registration list of 1906 in the ward of Camasellas and that in the month of July, 1908, he received a communication from the Board of Elections stating that an application had been made to them to take his name from the registration list. Whereupon he filed an affidavit that he had not given up his residence in Aguadilla but had always lived there and, as a consequence, his name was not stricken from the list and he voted at the last election.
It was shown that Ferreris generally worked at the Guá-nica Central during the sugar-grinding season but that at other times worked wherever he could get work, generally at Aguadilla. He was not married, but lived with his mother and brother, and that not only had he gone to the Guánica mill this year but that had been his practice for many years and that he, when there, stayed two, three, and at times, six months, sleeping on empty sacks. Ferreris also testified that he was at Guánica for the six months prior to *425June of 1908. The fact of his being in Aguadilla during June and July of 1908 was proved by several witnesses who also testified that Ms residence was Aguadilla. Ferre-ris testified that be bad known tbe defendant for a long time but that they did not live close together. The petition ■and affidavit of the appellant sworn to before the notary public, Carlos Franco Soto, was put in evidence. Therein Pellot prayed that Ferreris be stricken from the provisional list of inscriptions because the latter had been away from the' municipality for more than a year.
The witnesses of the defense gave testimony principally to the effect that each of them had not seen Ferreris in Aguadilla for some time and one of them that she had not seen him for more than a year.
The testimony of the defense was unimportant because of its negative character, no attempt being made to show that they or any of them had any communication with the appellant about the absence of Ferreris. If anything, such testimony went to show the fact that the prosecution was aiming to prove, namely, that Ferreris had not been away for an entire year preceding the election. There was no evidence to contra-vert this fact.
We may consider as definitely proved that the appellant made an oath alleging as true a fact that was shown to be false. There is, however, another thing necessary to be proved in a prosecution for perjury, namely, either that the defendant knew his statement to be false or that it was an unqualified statement of what he did not know to be true; such unqualified .statement according to section 122 of the Penal Code being equivalent to a statement of that which one knows to be false.
Under the information in this case it was necessary to prove that the appellant made the affidavit he did, knowing it to be false and that he did it wilfully. (People v. Von Tiedeman, 120 Cal., 128.) Sections 118 and 125 of the Penal Code *426of that State are counterparts of sections 117 and 322 of our Penal Code. These sections provide that:
“Every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, wilfully and contrary to such oath, states as true any material matter which he knows to be false, is guilty of perjury. It is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner.
“An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false. ’ ’
It is useless to urge that under section 122 it was sufficient to show that appellant made an unqualified statement of something he did not know to he true because the information charges that he knew his statement to be false. The allegata and the probata must correspond. The defendant had no notice that he was to be tried by virtue of section 122 of the Penal Code. The information follows almost literally the words of section 117.
No matter how carefully the evidence is reviewed it failed to disclose the slightest evidence that the appellant made his statement knowing it to be false. The instructions of the court tell the jury that if “the unqualified statement of what one does not know to be true is equivalent to a statement of what one knows to be false,” leaving it to the jury to infer-that the proof of the unqualified statement was all that was necessary to convict. It was error to instruct the jury in this, manner, but in any event the evidence does not follow the information.
The instructions were erroneous in another respect because they fail altogether to take notice of the element of malice. A corrupt oath is necessary to the crime of perjury. (People v. Tiedeman, supra, and cases cited therein.) However, as no exception was taken to the charge we do not think the case should be reversed because of the instructions.
*427We do not think, moreover, that the proof shows any malice. The testimony of the prosecuting witness in itself shows that he was away at least half of the year and the testimony is absolutely consistent with an honest belief on the part of Pellot that Ferreris was. away for the entire year.
For these reasons the sentence must be reversed and the case remanded for a new trial or further proceedings not inconsistent with this opinion.
Reversed.
Chief Justice Hernández and Justice Figneras concurred. Mr. Justice MacLeary dissented. Mr. Justice Del Toro took no part in the decision of this case.