Lord Coke defined perjury at common law as “a crime committed when a lawful oath is administered, by any that hath authority, to any person in any judicial proceeding, who sweareth absolutely and falsely in a matter material to the issue or cause in question, by their own act, or by the subornation of others.” 3 Coke Inst., 164. The requisites are the false oath, lawfully administered in a judicial proceeding or in the course of justice, and wilfully and corruptly taken, in regard to a matter material to the issue or inquiry. Pegram v. Stoltz, 76 N. C., 349. At common law false swearing is a distinct offense. In several states laws have been passed enumerating certain acts which, though not within the common law definition, are yet defined as perjury.
The defendant’s prayer for instructions to the jury, his motion to quash the indictment, and his motion to dismiss the action seem to be based on the theory that the defendant was prosecuted for perjury at common law, but he was not; and for this reason, if for no other, his prayer and his motion were properly denied.' Neither was there any error in refusing his motion to amend the bill. An indictment duly returned upon oath cannot usually be amended by the court without the concurrence of the grand jury by whom it was found or the consent of the defendant. S. v. Sexton, 10 N. C., 184; S. v. Cody, 119 N. C., 908.
The defendant is entitled to a new trial, however, for error in the judge’s instructions. The indictment charged a breach of the following statute: “If any person shall wilfully and corruptly commit perjury, on his oath or affirmation, in any suit, controversy, matter or cause, depending in any of the courts of the State, or in any deposition or affidavit taken pursuant to law, or any oath or affirmation duly administered of or concerning any matter or thing whereof such person is lawfully required to be sworn or affirmed, every person so offending shall be guilty of a felony and shall be fined not exceeding one thousand dollars, and imprisoned in the county jail or State’s prison not less than four months nor more than ten years.” O. S., 4364.
*716Tbe complaint was verified; it was necessary to verify tbe answer to make it available. C. S., 528. Tbe defendant swore to tbe answer and tbe oatb was administered to bim concerning a matter “whereof be was lawfully required to be sworn.” But be cannot be convicted unless in tbe terms of tbe statute he “wilfully and corruptly committed perjury.”
Tbe defendant testified that be signed tbe note as surety, not as principal; that bis attorney prepared tbe answer and read it to bim; that be understood tbe answer to tbe second allegation of tbe complaint merely as a denial that be bad signed tbe note as principal; that bis attorney advised bim to verify tbe answer and that be did so because be thought tbe affidavit was both necessary and true. Under these circumstances whether be took tbe oatb wilfully and corruptly was a matter for tbe jury to determine and not a conclusion of law. Tbe following instruction, therefore, entitles tbe defendant to a new trial: “If you find tbe facts to be as testified to and believe all tbe evidence in tbe case, you will return a-verdict of guilty.”
New trial.