In substance, the matter assigned as perjury in the indictment upon which defendant has been convicted in this case, was that defendant, in an investigation before the grand jury, testified or swore that he did not, at a time and place mentioned, say to S. H. Downing and Howard Templeton that on the night of the 19th day of February; 1891, he was present at the breaking of a certain storehouse in the town of Black Jack Grove and participated in said breaking, and knew the circumstances attending said breaking.
It is alleged that said matter was a material inquiry before the grand jury. It is also alleged that the defendant Brooks did at the time and place named make the statement to Downing and Templeton assigned as perjury, and that his statement denying the same under oath before the grand jury was willfully and deliberately false, and that he knew the same to be false when he made it.
The first question for our determination is, does the indictment set out facts sufficiently material upon which to base an assignment of perjury; in other words, do the allegations in the indictment present an issue showing the materiality of the assigned perjury ? Wliat was the issue under investigation before the grand jury? Was it the guilt of this defendant or other parties of burglary? We are not informed. Suppose the issue was the guilt of other parties, and that was the matter being investigated, how could it be material to that issue that defendant simply told Downing and Templeton that he was present and participated in the burglary ? Suppose he had answered the question affirmatively and said, “Tes, I did tell them so,” would that statement made in the grand jury room have tended in any manner to have proved the guilt of these other parties on their trial in the District Court when they were being tried for the burglary ? What he said in the grand jury room about the matter one way or the other would not have been evidence for or against them, and could not have been used as such. On the other hand, defendant’s denial that he made the statement was not pertinent to any issue that could have been raised on said trial and could not have been used as evidence by them in their behalf, though it might be used for the purpose of impeaching defendant had he testified differently as a witness on such trial, and for no other purpose.
*585We fail to see the materiality of the matter assigned as perjury to “the issue of any case on trial before any court. We think the indictment is wholly insufficient in its allegations as presenting a case of perjury.
Can a conviction for perjury be sustained on the proof of the taking •of an oath and of the máking of the statements upon which the perjury is assigned, followed by proof that at other times the defendant, when not under oath, made a statement or statements directly contradictory ■of his sworn statements ?
Hr. Greenleaf says: “If the evidence adduced in proof of the crime •of perjury consists of two opposing statements of the prisoner and nothing more, he can not be convicted, for if the one was delivered under oath it must be presumed, from the solemnity of the sanction, that the declaration was the truth and the other an error or falsehood, though the latter, being inconsistent with what he has sworn, may form important evidence with other circumstances against him; and if both the contradictory statements are delivered under oath, there is still nothing to show which of them is false where no other evidence of the falsity is given.” 1 Greenl. Ev., 13 ed., sec. 259. See also Dodge v. The State, 4 Zabrinski, 455; 2 Whart. Crim. Law, sec. 1005.
In Swartz v. The Commonwealth, in 27 Grattan, 1025, also reported in 2 American Criminal Reports, 410, this question is discussed in an able opinion by Staples, Judge, and it was held that on a trial for perjury evidence simply that the defendant had at one time sworn to one statement of facts and afterward changed his testimony, and, admitting that he had sworn falsely, testified in direct contradiction of his first statement, is not sufficient to justify his conviction. The prosecutor must prove which of the two statements is false, and must corroborate the true statement of the prisoner by independent evidence other than by his own statements or declarations. And in that case he cites Reg. v. Wheatland, 8 C. & P., 238; Regna v. Hughes, 1 C. & K., 519; Jackson’s case, 1 Lewin, 270; 2 Russ, on Crimes, 651, 652; Roscoe’s Crim. Ev., 767, 768.
In the case of the State v. Buckley, 18 Oregon, 228, it was held that: “A conviction for the crime óf perjury can not be sustained where there is no other' evidence except proof of the taking of the oath, the giving of the evidence upon which the perjury is assigned, followed by proof that at other times the prisoner when not under oath made statements, the legal effect of which was to contradict his declarations under oath. That in a prosecution for perjury where the only evidence is the contradictory statements of the prisoner, one under oath and the other not, because of the solemnity of the oath credit is to be given to the statement under oath rather than the one not under oath.” And in that case it was held that the prisoner was improperly convicted on the facts presented to the jury.
*586We are of the opinion that the indictment in the cage before us does not show the materiality of the matter assigned as perjury, and we are further of the opinion that the conviction is not sustained by the evidence.
Judgment reversed and prosecution dismissed.
Reversed and dismissed.
Judges all present and concurring.