Turner

Defendant, convicted of perjury, appeals from the judgment and from the order denying him a new trial. Of the propositions which he advances in support of his appeal but one need be considered, since it is determinative of the question.

The indictment is fatally defective. It charged that the defendant did “falsely, feloniously, contrary to his said oath, and knowing the same to be false, swear, take oath, say and give in evidence, among other things, in substance as follows.”

By our Penal Code “every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states as true any material matter which *680 he knows to be false, is guilty of perjury.” (Pen. Code, sec. 118.) This indictment fails to charge that the false swearing was willful. At common law, where willfulness was an essential element of the crime, and in all the states of this country which by statute have adopted a definition of the crime making willfulness an element thereof, it is held uniformly and without exception that the…