#### John Kimmel v. The People of the State of Illinois.

1. Indictment for perjury—of its requisites. It is not necessary, in an indictment for perjury, to set forth so much of the proceedings of the former trial as will show the materiality of the question on which the perjury is assigned,— it will be sufficient to allege generally that the particular question became a material question.

2. So, where the perjury was assigned upon a statement made by the accused in his testimony before a grand jury, upon the investigation of a charge of embezzlement against a banker, that he had deposited with the banker a package containing a certain specified sum in county orders, in the name of his wife, upon objection that the indictment failed to show that the banker sustained any fiduciary relation to the witness, it was held that it was enough that the indictment alleged that the question upon which the perjury was assigned was a material question in the investigation of the charge of embezzlement, without setting out minutely the transaction in respect to the alleged deposit.

3. The testimony of the accused before the grand jury, in respect to which the perjury was assigned, was to the effect that he had deposited with the banker a package containing $525.71 in county orders, and that while the package was in the banker’s custody it was opened and a certain amount of the county orders abstracted, and retained when the package was returned. In view of this testimony it was important to state in the indictment against the witness for perjury the precise amount contained in the package, and the indictment was not bad because it did so state.

4. It was not necessary to give a description of the county orders alleged to have been deposited, in the indictment for perjury.

*4585. Instruction—modification confining jury to the evidence. Upon the trial of a person under an indictment for perjury, the court instructed the jury, substantially, that intention was the gist of the charge, and although they might believe the accused had sworn falsely, yet unless they believed, from the evidence, that -he had so sworn wilfully, corruptly, and falsely, and not by mistake, they must acquit. The court added: “provided any such mistake appears in the evidence.” It was held, as the object of the modification was to confine the jury to the evidence, it could do no harm, and was not objectionable.

Writ of Error to the Circuit Court of Union county; the Hon. John Dougherty, Judge, presiding.

Mr. Thomas H. Phillips, Mr. F. E. Albright, and Mr. Wm. J. Allen, for the plaintiff in error.

Mr. James K. Edsall, Attorney General, and Mr. Wm. S. Day, State’s Attorney, for the People.

Mr. Justice Craig

delivered the opinion of the Court:

This was an indictment against John Kimmel, for perjury, returned by the grand jury to the circuit court of Union county, where a trial was had and the defendant convicted. A motion for a new trial was entered, which the • court overruled, and sentenced the accused to imprisonment in the penitentiary for one year. To reverse the judgment the defendant has sued out this writ of error, and assigns various errors.

The first error relied upon is, that the indictment is insufficient. It appears that a complaint was made before the grand jury against Charles M. Willard, for the crime of embezzlement, and the defendant was sworn and testified as a witness.

It is alleged in the indictment, “ that upon said investigation it became and was a material question whether the said John Kimmel, o:q the 15th day of February, in the year of our Lord one thousand eight hundred and seventy-eight, had deposited in the bank of said Charles M. Willard, at Anna, Union county, Illinois, the sum of $525.71 in county orders, in the name of Fancy M. Kimmel; and thereupon the said John Kimmel, having then and there so sworn as *459aforesaid, did then and there, to-wit, on the investigation of said charge before the grand jurors and the grand jury-aforesaid, willfully, maliciously, feloniously, wickedly, and corruptly and falsely depose, swear and give in evidence, among other things, in substance as follows, to-wit: that on or about the 15th day of February, A. D. 1878, he, the said John Kimmel, deposited in the bank of Charles M. Willard, in Anna, Union county, Illinois, a package containing $525.71 in county orders, in the name of his wife, Nancy Kimmel, whereas, in truth and in fact, the said John Kimmel did not on the 15th day of February, aforesaid, or on any other day, deposit in the bank of Willard in Anna, or in any other place in Union county, Illinois, or elsewhere, a package containing $525.71 in county orders, or any other kind of funds, in the name of Nancy Kimmel, or in any other person’s name. And so the jurors aforesaid, upon their oaths aforesaid, do say that the said John Kimmel, on the 13th day of March, in the year last aforesaid, at the county of Union, and State of Illinois aforesaid, before the grand jurors and the grand jury aforesaid, their said foreman, James D. Brooks, aforesaid, having lawful poAver and authority as aforesaid, by his OAvn act and consent and of his own most wicked and corrupt mind, in manner and form aforesaid, falsely, wickedly, feloniously, maliciously and corruptly did commit willful and corrupt perjury,” etc.

The first objection made to the indictment is, that facts are not averred showing that Charles M. Willard sustained any fiduciary relation to the defendant, and hence the testimony of the defendant before the grand jury, to the effect that he did not get back from the bank the same amount of county orders that he deposited, was immaterial, and would not amount to peijury.

We do not understand that the authorities required the pleader to set out minutely in the indictment the transaction between the defendant and Willard. In 2 Bussell, 639, it is said: “ It is necessary that it should appear on the face of the indictment that the oath taken was material to the question *460depending. But it is not necessary to set forth in the indictment so much of the proceedings of the former trial as will show the materiality of the question on which the perjury is assigned; and it will be sufficient to allege generally that the particular question became a material question.” See also, 2 Chitty Criminal Law, 307; Pollard v. The People, 69 Ill. 148.

In the indictment, while the facts and circumstances under which the defendant deposited money with Willard are not detailed, yet it is alleged that it became and was a material question, on the trial of the charge of embezzlement against Willard before the grand jury, whether defendant had deposited $525.71 with the said Willard. This we regard as sufficient, without a statement of the facts showing wherein the matter sworn to was material.

It is also contended, that the indictment is bad because it makes the precise sum sworn to have been deposited material. Under the facts as proven, had the indictment been drawn otherwise no conviction could have been sustained. The tes-' timony of the defendant before the grand jury in substance was, that he had deposited with Willard a package containing $525.71 in county orders; and that while the package was in Willard’s custody it had been opened, and a certain amount of the county orders taken out, and retained when the package was returned. Whether this statement was true or false depended upon the amount the package contained when it was deposited, and hence the necessity of the averment as made in the indictment.

It is also said the indictment is defective, as it does not set out a full description of the county orders. We are aware of no authority that required a description of the county orders to be given in the indictment,—nor do we perceive any necessity for setting out the orders in the indictment.

It is also claimed that the court erred in modifying defendant’s ninth instruction, which, as asked, read as follows:

“ The court instructs you, for the defendant, that intention is the gist of the action; and that although you may be *461satisfied that the defendant swore falsely, yet, unless you further believe, from the evidence, beyond a reasonable doubt, that he did so willfully, corruptly, and falsely, and not by mistake, your verdict should be, not guilty.”

The court added, “ provided any such mistake appears in the evidence.”

The only object of the modification was to confine the jury to the evidence; and as their deliberations would, of necessity, be controled by the evidence before them, we perceive no harm that could come to defendant from the modification.

The point has also been made, that the verdict was not sustained by the evidence. If the testimony of the witnesses called for the people is true,—and we perceive nothing in this record to lead to a different conclusion,—the verdict was fully sustained by the proof.

As no error appears, the judgment will be affirmed.

Judgment affirmed.