*237Opinion of the Court
Robert E. Quinn, Chief Judge:The accused was convicted of two charges alleging violations of the Uniform Code of Military Justice. One specification of Charge I alleges perjury in that the accused, in violation of Article 131, Uniform Code of Military Justice, 10 USC § 931, willfully testified falsely on a material matter at his trial by special court-martial. On review, a board of review dismissed the second charge on the ground that it failed to allege an offense, and held that the instruction on the perjury charge was erroneous. However, the board of review determined that the evidence and the instructions were sufficient to support a finding of guilty of false swearing, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934, as a lesser included offense to that charged. We granted review to consider the correctness of the board of review’s decision.
The first question for our consideration is whether false swearing in a judicial proceeding is an offense under the Uniform Code. The accused contends that it is not. His contention is based upon the theory that Congress intended to limit prosecution for a false oath in a judicial proceeding to Article 131 which defines the offense of perjury. Stated differently, the accused maintains that since he is charged with giving a false oath in a judicial proceeding he must be convicted of perjury under Article 131 or acquitted.
False swearing and perjury are often used interchangeably. See State v Dowd, 201 NC 714, 161 SE 205; Ray v Times Pub. Co., 12 SW2d 165 (Tex Com App). They are, however, different offenses. For present purposes, we may emphasize the difference by noting that perjury, as defined at common law and under the provisions of Article 131, requires that the false statement be made in a judicial proceeding and be material to the issue, whereas these matters are not part of the offense of false swearing. See 70 CJS, Perjury, § 1, pages 457, 459.
False swearing was an offense at common law. See State v Coleman, 117 La 973, 42 So 471. It has been recognized as an offense in military law (Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 730, footnote 62) and since 1921 has been explicitly spelled out in the Manual for Courts-Martial, U. S. Army.
The fact that false swearing may be a cognizable offense in military law, however, does not provide a complete answer to our problem. We must still determine whether it can be committed in the course of a judicial proceeding. The Manual for Courts-Martial, United States, 1951, paragraph 213d (4), provides that false swearing may consist “in giving false testimony in a judicial proceeding ... on other than material matters.” The offense has also been regarded as lesser included in a charge of perjury. Ibid, Appendix 12, page 540; Dig Op, JAG 1912-1940, § 451, page 331; United States v Stradear, 31 BR (ETO) 101. Civil authorities seem to be divided on the issue. In State v Spencer, 101 Utah 274, 117 P2d 455, reh den, 101 Utah 287, 121 P2d 912, the Utah court referred to the state statutes defining perjury in the first and second degree. The former required a false oath on a material matter in an action or special proceeding; the latter defined the offense as one committed under circumstances not amounting to perjury in the first degree. The court held that the two offenses were separate and distinct and that one was not included in the other. Apparently to the same effect are Warren v State, 51 Tex Cr 262, 122 SW 541, and O’Bryan v State, 27 Tex App 339, 11 SW 443, which construe the Texas statute on false swearing as being limited to a false oath in a non judicial proceeding. Other state courts have held that false swearing is included within perjury. Weiner v Commonwealth, 221 Ky 455, 298 SW 1075, overruling earlier cases to the contrary; People v Samuels, 284 NY 410, 31 NE 2d 753.
*238Fundamentally, the decisions turn on the construction of different statutes. Article 131 prohibits false testimony in a “judicial proceeding or in a course of justice.” If, therefore, a false statement is made under oath in a judicial proceeding, it must meet the requirements for perjury under the Article or no offense has been committed.
The decision of the board of review is reversed. The record of trial is returned to the board of review for action consistent with this opinion.
Judge FeRguson concurs.