Van VALKENBURGH, J.,
delivered the opinion of the court.
On the trial of this case, and after the State had rested, the counsel for the, accused offered the statement of the prisoner, under oath, as to the matter of his defense, which the court refused to allow, unless he was put upon the stand as a witness, subject to cross-examination.
The statute of 1865, Chapter 1172; Section é, provides that “ in all criminal prosecutions, the party accused shall have the right of making a statement of the matters of his or her defense, under oath, before the jury, when, in the opinion of the court, the ends of justice shall so require.”
Under this act, it was in the discretion of the court to permit the accused to make such a statement, depending entirely upon the question ás to whether the “ ends of justice shall, so require.”
' The making of such a statement under oath does not necessarily constitute the accused a witness, nor does it subject him to the rules applicable to witnesses, making him liable to cross-examination. (It is simply a presentation verbally, in his own language and manner, of the'matters .pertaining to his defense, of such facts and circumstances surrounding the ease as will go to excuse the offense and negative the idea of willful or corrupt intent. It is for the jury alone, and is to be taken into consideration by them, in connection' with all of the evidence in the case, and to be allowed such weight, and such only, as they, in their judgment, may see fit to give it.
[584]*584In the case of Barber vs. the. State, (13 Fla. 681,).Where-the error alleged was, that “ the court charged the; jury that ;the statement, of. the .defendant is mot. evidence, and. that they could not take such statement into consideration':as;evidencé,”’the court says : “There was spine purpose,..to be Subserved more, than, the mere amusement,Of the jury. in; allowing the statement to be made. It is the jury, alone, who • are entitled to: consider the statement, and if it.be remarked upon at .ally it should.-be to suggest, to. the- jury, in effect, that they are-to. attach to it such importance,’■ in. view' of the nature'of the offense charged, and'of the: testimony, before •them, as in their good judgment it is , entitled to-., It is for .their consideration alono,, and they may disregard it entirely.” And, again ; “ The defendant is entitled,'when.-permitted t.o make the statement; to the benefit or disadvantage of 'such -impression' as' he- may be able to.make'upon the judgment of the jury.” ' 'v.ii ■■ ■
This .statute, however, of 1865, was repealed by Chapter 1816 of the laws of 1870. This is., an act-entitled •“ An act ■concerning’testimony,” embodied in a. -single- section, and ■reads.as follows : “ In the courtsmf -Florida,-there shall be no exclusion of any witness in.á civil action because he is a party to or interested ¡in the, issue tried'. In- all the criminal prosecutions,, the-party accused shall.; have the right of making a statement to the.jury, under oath, of the matter of his or .her defense.”-r- i’¡ A fi ¡-'Aw; b f.-
This takes from, the court the discretion .-allowed by the statute of -1865, and the unqualified right of-the: accused to ¡make' such a statement, under - oath,. to. th.er-ju-ry; is. .established, -, by- law. - : -. ■; •;. wh -: AV -
■ - Had it been the intention of the Legislature -to provide that the accused should make himself a,witness,,subject :to ;the rules, controlling in the examination of . witnesses,■¡there would have been no necessity, for the second • paragraph in the section where, this - provision is found;, A slight change of the-first portion of the-section woulddi'ave,. covered every case of civil action or criminal prosecution.
[585]*585n.c.llhb.-iedofld’igibhn&tbf'erro'r is : ■' “ The court, artiong Other things, bharged-dhe- jury that’ if:, they ■bélíevedy'fro'm the testimony, "that -the accused -took the oath,-'and-that if ■wa§'''fa.lsé;~theácbiísed'tvás:gtúlty':-,: ? • ■< ' hr s v;v *
Perjui-y-is defined - in' the elementary"-books tó -be-the-taking Of a¿-Willfully- false oath by One1 who, being lawfully -sWórn !'by a’ Competent’ court to depose the'-truth in'arty judicial- proceeding,, swears absolutely-: and- falsely, irt ’ a matter ihateriul to the point' im-questiori, Whether he be believed. Or -hot. Orir statute pin accordance1 Witfr’thie definition Of péyjüry, in an “ act to provide for the punishment of crimé-artd ' proceedings;in- criminal cases,”’ passed in-1868,hays “Whoever; beinga^lthor3zed■or■u'cqui-red'.by,law to’-take'-an oath»or affirmation,'willfully swears or affirms, falsely,' in regard:-to 'any onateriál'orvatteror'Úimg respéetirig wdiieh such Oatli or affirmation is- authorized' or required,cshall be deemed guilty of perjury,” &c. \ m’ i, ''W.
"It will-be seen that both at eoinmon dawand by'statute in--this State,'the rule is the same, "or,: in'.-Other-words; that'the 'eOmmob'law definition of tlie crime -qfpei'juryis made a portion of the statutes, and that the okth must'-not-'only-bo false, but'that'it-must be^ii^Ziyiail'segan'd-to’ matter’’ material to the -issu'C. It- is. neees’sary so ■ to charge :the'- offense in thedndictme’rtt;!oí1 tlierbis'---no:-’criine'alleged.1"''An-oath ' may be false', -and still'not willfully false, so ns- tó - constitute the crime of perjury. 2 Bishop Crim. Law, §1046. See, also, Commonwealth vs. Brady, 5 Gray, 78.
- It may also be to an immaterial matter; out King,- one;'not material to the'issue,'- in which'case,-it COuld'diot hedield as a willful false oath. 1 Hawkins P. C., C. 27, page 431.
- In Some cases,'where a¡ false oath has" been- ¡tákény :the. 'party was •purt'ished'hy'-irtdiC,tmbnt!,a-i.!cornihoh;iiaw;'for bmiádemeanói', though the offerise’did not amoünt to-'perjury.:,‘'i 2 Russell on Crimes, 603; 2 Bishop C.L., § 1014.
flt-'is said1 “the false Oath ffifist'berwdlífukartd taken1 with some degree: of deliberation"; 'for if, lipón th'é -Wholebircnm[586]*586stances, o.f the. ease,, it shall appear probable .that, it was* owing rather to the weakness than perverseness of the party, •as where it was occasioned by surprise, or inadvertency, or •a mistake of the true state of the question, it cannot but be hard to make it amount to voluntary and corrupt perjury, ' which is of all crimes whatsoever the. most infamous and ,detestable.” 1 Hawkins, P. C., C, 27, § 2; 2 Russell on Crimes, 597.
A false oath, taken by inadvertence,,01: mistake, cannot ^amount to voluntary and corrupt, perjury. 2 Wharton C. L. § 2199.
On the other hand, i.t has, beep held . that, a .man may be guilty of perjury if he, swears to a particular, fact without, at the time, knowing whether it be true or false. It.is no defense that the oath so taken is true, if the party swears, to it willfully and corruptly, and rhas.po probable ground for the oath. 1 Hawkins P. C., C. 27, page 433; People vs. McKenney, 3 Parker C. R. 510.
. It will thus be seen that there is a, difference, between a willful false .oath, constituting the crime of, perjury, and a false oath which, at common law, might he punished as a misdemeanor. The one is stubborn and, corrupt, while the other is simply not true, lacking the elements which go to .constitute the crime of perjury as defined by our statute.
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Van VALKENBURGH, J.,
delivered the opinion of the court.
On the trial of this case, and after the State had rested, the counsel for the, accused offered the statement of the prisoner, under oath, as to the matter of his defense, which the court refused to allow, unless he was put upon the stand as a witness, subject to cross-examination.
The statute of 1865, Chapter 1172; Section é, provides that “ in all criminal prosecutions, the party accused shall have the right of making a statement of the matters of his or her defense, under oath, before the jury, when, in the opinion of the court, the ends of justice shall so require.”
Under this act, it was in the discretion of the court to permit the accused to make such a statement, depending entirely upon the question ás to whether the “ ends of justice shall, so require.”
' The making of such a statement under oath does not necessarily constitute the accused a witness, nor does it subject him to the rules applicable to witnesses, making him liable to cross-examination. (It is simply a presentation verbally, in his own language and manner, of the'matters .pertaining to his defense, of such facts and circumstances surrounding the ease as will go to excuse the offense and negative the idea of willful or corrupt intent. It is for the jury alone, and is to be taken into consideration by them, in connection' with all of the evidence in the case, and to be allowed such weight, and such only, as they, in their judgment, may see fit to give it.
[584]*584In the case of Barber vs. the. State, (13 Fla. 681,).Where-the error alleged was, that “ the court charged the; jury that ;the statement, of. the .defendant is mot. evidence, and. that they could not take such statement into consideration':as;evidencé,”’the court says : “There was spine purpose,..to be Subserved more, than, the mere amusement,Of the jury. in; allowing the statement to be made. It is the jury, alone, who • are entitled to: consider the statement, and if it.be remarked upon at .ally it should.-be to suggest, to. the- jury, in effect, that they are-to. attach to it such importance,’■ in. view' of the nature'of the offense charged, and'of the: testimony, before •them, as in their good judgment it is , entitled to-., It is for .their consideration alono,, and they may disregard it entirely.” And, again ; “ The defendant is entitled,'when.-permitted t.o make the statement; to the benefit or disadvantage of 'such -impression' as' he- may be able to.make'upon the judgment of the jury.” ' 'v.ii ■■ ■
This .statute, however, of 1865, was repealed by Chapter 1816 of the laws of 1870. This is., an act-entitled •“ An act ■concerning’testimony,” embodied in a. -single- section, and ■reads.as follows : “ In the courtsmf -Florida,-there shall be no exclusion of any witness in.á civil action because he is a party to or interested ¡in the, issue tried'. In- all the criminal prosecutions,, the-party accused shall.; have the right of making a statement to the.jury, under oath, of the matter of his or .her defense.”-r- i’¡ A fi ¡-'Aw; b f.-
This takes from, the court the discretion .-allowed by the statute of -1865, and the unqualified right of-the: accused to ¡make' such a statement, under - oath,. to. th.er-ju-ry; is. .established, -, by- law. - : -. ■; •;. wh -: AV -
■ - Had it been the intention of the Legislature -to provide that the accused should make himself a,witness,,subject :to ;the rules, controlling in the examination of . witnesses,■¡there would have been no necessity, for the second • paragraph in the section where, this - provision is found;, A slight change of the-first portion of the-section woulddi'ave,. covered every case of civil action or criminal prosecution.
[585]*585n.c.llhb.-iedofld’igibhn&tbf'erro'r is : ■' “ The court, artiong Other things, bharged-dhe- jury that’ if:, they ■bélíevedy'fro'm the testimony, "that -the accused -took the oath,-'and-that if ■wa§'''fa.lsé;~theácbiísed'tvás:gtúlty':-,: ? • ■< ' hr s v;v *
Perjui-y-is defined - in' the elementary"-books tó -be-the-taking Of a¿-Willfully- false oath by One1 who, being lawfully -sWórn !'by a’ Competent’ court to depose the'-truth in'arty judicial- proceeding,, swears absolutely-: and- falsely, irt ’ a matter ihateriul to the point' im-questiori, Whether he be believed. Or -hot. Orir statute pin accordance1 Witfr’thie definition Of péyjüry, in an “ act to provide for the punishment of crimé-artd ' proceedings;in- criminal cases,”’ passed in-1868,hays “Whoever; beinga^lthor3zed■or■u'cqui-red'.by,law to’-take'-an oath»or affirmation,'willfully swears or affirms, falsely,' in regard:-to 'any onateriál'orvatteror'Úimg respéetirig wdiieh such Oatli or affirmation is- authorized' or required,cshall be deemed guilty of perjury,” &c. \ m’ i, ''W.
"It will-be seen that both at eoinmon dawand by'statute in--this State,'the rule is the same, "or,: in'.-Other-words; that'the 'eOmmob'law definition of tlie crime -qfpei'juryis made a portion of the statutes, and that the okth must'-not-'only-bo false, but'that'it-must be^ii^Ziyiail'segan'd-to’ matter’’ material to the -issu'C. It- is. neees’sary so ■ to charge :the'- offense in thedndictme’rtt;!oí1 tlierbis'---no:-’criine'alleged.1"''An-oath ' may be false', -and still'not willfully false, so ns- tó - constitute the crime of perjury. 2 Bishop Crim. Law, §1046. See, also, Commonwealth vs. Brady, 5 Gray, 78.
- It may also be to an immaterial matter; out King,- one;'not material to the'issue,'- in which'case,-it COuld'diot hedield as a willful false oath. 1 Hawkins P. C., C. 27, page 431.
- In Some cases,'where a¡ false oath has" been- ¡tákény :the. 'party was •purt'ished'hy'-irtdiC,tmbnt!,a-i.!cornihoh;iiaw;'for bmiádemeanói', though the offerise’did not amoünt to-'perjury.:,‘'i 2 Russell on Crimes, 603; 2 Bishop C.L., § 1014.
flt-'is said1 “the false Oath ffifist'berwdlífukartd taken1 with some degree: of deliberation"; 'for if, lipón th'é -Wholebircnm[586]*586stances, o.f the. ease,, it shall appear probable .that, it was* owing rather to the weakness than perverseness of the party, •as where it was occasioned by surprise, or inadvertency, or •a mistake of the true state of the question, it cannot but be hard to make it amount to voluntary and corrupt perjury, ' which is of all crimes whatsoever the. most infamous and ,detestable.” 1 Hawkins, P. C., C, 27, § 2; 2 Russell on Crimes, 597.
A false oath, taken by inadvertence,,01: mistake, cannot ^amount to voluntary and corrupt, perjury. 2 Wharton C. L. § 2199.
On the other hand, i.t has, beep held . that, a .man may be guilty of perjury if he, swears to a particular, fact without, at the time, knowing whether it be true or false. It.is no defense that the oath so taken is true, if the party swears, to it willfully and corruptly, and rhas.po probable ground for the oath. 1 Hawkins P. C., C. 27, page 433; People vs. McKenney, 3 Parker C. R. 510.
. It will thus be seen that there is a, difference, between a willful false .oath, constituting the crime of, perjury, and a false oath which, at common law, might he punished as a misdemeanor. The one is stubborn and, corrupt, while the other is simply not true, lacking the elements which go to .constitute the crime of perjury as defined by our statute. The jury must find that the accused was guilty of taking a willfully false oath, and in relation to matter material to the issue, in order to convict him of the crime of perjury and to render him liable to the .punishment prescribed for that .offense, and to,this end the court should have so charged .them.
The third ground of error assigned*' is similar to and em■braeed in the first,' that the couft refused to permit the accused. to, make his statement pf the matters,, of his ' defense, 'on oath, before the jury. The accused, at the same time of ■making such offer, stated' tó the court‘the sxxbstance of the statement so proposed to be inada The coxxi't refused to [587]*587grant the request upon the ground of irrelevancy, and said that if the facts so proposed to be stated to the jury were true, it was no ■ defense. This point has been disposed of under the first above assignment of error, where we hold that the accused, under the statute, has a- right to make a statement of the matter of his defense, on oath, before the jury. We cannot see how such a statement as is offered by the accused would be irrelevant. It related, certainly, to the matter of his defense; to the question, which the jury must determine, of the intent. Was the oath alleged to have been taken by the accused willfully false ? or was it taken through inadvertence, and not with a corrupt motive ? It would go for what' it was worth, and while it might hot strictly be a defense to the prosecution,- yet the accused had á right to its consideration by the jury, whose judgment might have been influenced in his favor by it. “ It - would give to the jury for their consideration the facts upon which his oath was based, and the reasons operating upon his mind, and, from those facts and reasons they might determine the motives, if any, influencing him. We think it should have been admitted by the court.
The judgment must be reversed and a new trial awarded.