#### STATE v. MATHEW DAVIS.

In an indictment for perjury, where the defendant is charged with having been sworn “on the Holy Gospels of God,” and it appeared that he was not sworn as charged, such variance is fatal and will entitle the defendant to a new trial.

Indictment for perjury tried before Tourgee, J., at the Spring Term, 1873, of the Superior Court of Randolph county.

Defendant was charged with having, in a suit between Hood, Bonbright & Co,, plaintiffs, and Welborne Lassiter, defendant, tried in the Superior Court of Randolph county before his Honor, Judge Tourgee, at Pall Term, 1871, *384“ being then and there duly sworn upon the Holy Gospel of God to speak the truth," &c., falsely, wickedly, wilfully and corruptly committed perjury, in swearing as to the attestation of a certain deed, which was a material point on the trial of the issue then joined.

On the trial much evidence was introduced both for the State and for the defendant, to the introduction of some of which the defendant objected. It is unnecessary, however, to a proper understanding of the opinion delivered, to notice the exceptions of the defendant to the evidence as the ease was decided in this Court upon one point: the alleged error in his Honor in charging the jury “ that it was not necessary for the State to prove that the defendant was sworn upon the Holy Gospel of God as charged in the bill of indictment ; that if they were satisfied that he was sworn in any manner known to the law it was sufficient.” To this charge the defendant excepted.

The jury returned a verdict of guilty. Motion by defendant to arrest the judgment for error in allowing certain evidence to be given to the jury, and also for error in the charge of his Honor as to the above, and other points needless to mention. Motion refused. Judgment and appeal.

No counsel for defendant in this Court.

Attorney General Hargrove and L. M. Scott for the State:

1. The transcript discloses that “ the defendant was sworn and examined as a witness,” &c. The form and manner of the oath was not shown. .

It is admitted that if it had appeared in evidence that he was sworn with “ up-lifted hands,” or was a Quaker, it having been charged that he was sworn on the “ Holy Gospels,” the variance would have been fatal.

But, in Rex v. Rowley, Ky. and Mood. N. P. C. 302, (found also in 24 Eng. Com. Law,) it is held, “ that proofs that the *385defendant was sworn and examined as a witness, supports an averment, that he was sworn on the holy gospels, that being the ordinary mode of swearing in England.” See also Rex v. McCariher, Peake’s C. 155.

II. The ordinary mode of swearing in this State is upon the holy gospels. Rev. Code, chap. 76, sec. 1. It was sufficient for the State to show that the defendant was “ sworn and examined.” If sworn in the exceptional form, it was proper matter of defense.

Reade, J.

Our statute declares that “lawful oaths for the discovery of truth and establishing right are necessary and highly conducive to good government, and being most solemn appeals to Almighty God. * * * * Such oaths ought to be taken and administered with the mtmost solemnity.” This “ solemnity ” applies not only to the substance of the oath, but to the form and manner of iahiny it, and of administering it. And therefore the statute further provides that the Judge, or either person administering it, “shall require the party sworn to lay his hand upon the holy evangelists of Ahninghty God, * * * * and after repeating the words, so help me Qod, shall kiss the holy gospels as a seal of confirmation to the said engagements.” Rev. C. Oaths. After this manner every witness in North Carolina must be sworn. And a wilful violation of such an oath in a material matter is perjury, and no other is. This is the general rule. The only exception is “ when the person to be sworn shall be conscientiously scrupulous of taking a book oath in manner aforesaid, he shall be excused from laying his hands upon or touching the holy gospels * * * and he shall stand with his right hand lifted up towards heaven,” &c. And Quakers and some others who have conscientious scruples about swearing at all, are permitted to “ affirm.”

If the usual form of oaths upon the holy evangelists is *386dispensed with., and an “ appeal ” or “ affirmation ” is substituted, it must appear that the person sworn had conscientious scruples; else the “ appeal ” or “ affirmation ” is invalid.

This much has been said because of the general and solemn importance of the subject, and because his Honor seemed to be of the opinion that an oath valid for any one person was valid for every other person.

The indictment charged that the defendant was sworn “ upon the holy gospels.” His Honor charged the jury that they might convict him “if he was sworn in any manner known to the law.” We are to take it that this meant that they might convict him if it appeared that he was not sworn upon the holy gospels as the indictment charged, but was affirmed as a Quaker. And this is clearly in violation of the rale that the probata and allegata must agree. We suppose that his Honor’s idea was that as falsehood was the substance of the offense, the form of the oath was immaterial. But experience, precedents and practice all teach the value ■of certainty and precision in legal and especially in criminal proceedings. If one is charged with killing another with poison it will not be sufficient to prove that he killed him with a sword.

The following is a quotation from 2 Chit. Cr. L. p. 309: "And if he were sworn twice, first -in the usual form, and ■afterwards after his own method, to state that he was sworn •on the holy gospels of God will suffice, though had he been sworn only in the latter way the variance would have been fatal.”

So in our case he is charged with having been sworn upon ■•the holy gospels, and as we are to take it from the charge it appeared that he was not sworn as charged, but in some other way. The variance is fatal.

There are several other points in the case, but as this *387entitles the defendant to another trial, it is not necessary to notice them.

There is error.

Per Curiam. Venire de novo.