#### The State v. Hiram Carland.

Ah indictment for pei-jury charging, that the defendant “being-a wicked and evil person, and unlawfully and unjustly contriving-, &c. deposed &c.” and concluding-thatthe defendant, “ of his wicked and corrupt mind, did oommit wilful and corrupt perjury,” is defective even at common law, for not alleging- that the defendant *wilfully*and. *car-rujiily*swore falsely.

The defendant, was convicted, on the last circuit, at Buncombe, before Martin, Judge, upon an indictment for perjury. A motion for a new trial was made in the-court below, but as that motion ivas not pressed in this court, it is unnecessary to state the case-sent np with the record.

The indictment, after stating the suit, in which the perjury was charged to have been committed — proceeded as follows: “And the jurors aforesaid, upontheix* “ oath aforesaid, do further present, that the said *Hiram “ Garland,*being a wicked and evil disposed person, and í* unlawfully and unjustly contriving and intending, con*t(*trary to truth and justice,' to, &c.” [Setting out the several matters sworn with averments contradicting them] and concluded in these words: “And so the jurors “ aforesaid, upon their oath aforesaid, do say, that the ■“ said *Hiram Garland,*of his own most wicked and cor- “ rupt mind and disposition, did commit wilful and cor- “ rupt perjury, to, *See.”*

*Hogg*& *Badger,*for the defendant,

moved in arrest'of judgment, because the indictment did not charge, that the defendant wilfully and corruptly swore falsely. *115They argued this point at considerable length, and relied much upon the case of *Ilex*y. *Stephens*(5 *Barn.*& *Cress.*246-) *S. C.*(11 *E. C. L.*216).

The *Attorney -General, contra.*

ilus'it'iN, Judge

The counsel for the defendant, admitting the insufficiency of the objections, stated in the record, as having been taken on the trial in the Superior Court, move here in arrest of judgment, upon the ground that the indictment docs not charge that the defendant *sxvore wilfully and*corruptly.

Under the statute, it is clear the objection is a good one. *It*seems to be equally so at common law. In our search for precedents, not one has been found, except that in *Cox**case *(Leach*69) in which those epithets are .not *both*applied to the act of swearing. They enter into the definition of perjury at common law. And whatever evil intent may be alleged in the indictment as moving the defendant to take the false oath, the very i aking of it must be stated to have been done deliberately, and with a wicked purpose, at that moment existing. This has been expressed, by applying those terms *wilful and corrupt*to the act of swearing. *Cox’*case established, that one of them might be supplied by *maliciously.*That has been doubted, and never followed; though I suppose it would be in a case precisely in point. But in no instance hath the omission of both been allowed, though *falsely*and *maliciously*were used. And in a very late case, in the King’s Bench, in 1826 *(Rex*v. *Stephens)*this very point came directly before the court; when the indictment was held bad on a motion in arrest of judgment. This is of the more authority, because the statute 23 *George*II. c. 11, provides in that country for simplifying indictments for perjury ; as our own does here.

Per Curiam. — Judgment arpe stub,