Opinion.

remanding the cause for trial to the county court. On the contrary, the judgment of the circuit court shows that the cause was remanded because it had been erroneously decided. The language of the judgment is: "And the court having maturely considered the transcript of the record, is of opinion that there is error in the judgment of the county court. It is therefore ordered that the said judgment be set aside, and that the cause be remanded to the county court for trial.

It is well settled law that an appellate court will presume all proceedings had, as well as the judgment of the court below, to be regular and right unless the contrary plainly appears.

In Cheatham v. Hatcher and als., 30 Gratt. 56, it was held that "where the whole matter of law and fact is submitted to the court below, and its decision is based upon the mere credibility of the witnesses, it will not be disturbed by the appellate court, unless palpably wrong; but that this principle has no application in a case where the decision of the lower court proceeded, not upon the credit to be given to the witnesses, but upon a rule of law supposed by it to be correct, but in fact erroneous."

Here the judgment of the circuit court, in the respect in question, is predicated upon a plain misapprehension of the law. The circuit court had no authority to remand the cause for the reason, as given, that it had been erroneously decided; but under the circumstances of the case, it should have retained the case and proceeded at once to give judgment for the plaintiff, as the county court ought to have done. We do not decide that the circuit court should, where a cause is remanded for trial in the county court, spread in its order at large the character of the cause shown for so doing, for to do so would in many cases be inconvenient, and would unnecessarily cumber the record. It is necessary and proper, however, that the judgment in

Opinion.

all such cases show either that it was done for good cause shown, or else by agreement of the parties.

For these reasons we are of opinion that the said judgment of the circuit court, in so far as it remanded said causes to the county county for trial, is erroneous, and must be reversed; but in so far as it reversed the judgment of the said county court, it must be affirmed; and that a judgment be entered here, such as the said circuit court ought to have entered, with costs to the plaintiff in error.

JUDGMENT REVERSED IN PART AND AFFIRMED IN PART.

Syllabus-Statement.

Richmond.

RHODES V. THE COMMONWEALTH.

March 13th, 1884.

Absent, Lewis, P.

1. CRIMINAL PROCEEDINGS-Indictment-Time laid-Perjury.-—As a gen. eral rule, time of commission of offence, as laid in indictment, is not material, and confines not proof to time laid; but where time laid is provable by record, and in indictment for perjury, time must be truly and precisely laid, and failure so to state it renders indictment demurrable. Code 1873, ch. 201, % 5.

2. IDEM-Indictment for perjury.-Where one is indicted for swearing contradictorily on two occasions, prosecutor must elect which oath he holds to be perjured, and that oath he must affirmatively prove to be false. If defendant is shown to have sworn contradictory oaths without more, non constat which is false.

3. IDEM.-Idem-Materiality.-The matter of the false oath must be material. If it be not material, the fact that it is false will not sustain the conviction.

4. IDEM-Idem-Idem-Case at bar.-R swore that M had stolen bacon and offered to sell it to him November 15th, 1875. Later, R swore that M had stolen bacon and offered to sell it to him just before Christmas, December, 1875. On indictment against R for perjury, it was not proved that M did not steal bacon; but it was proved that R made contradictory statements as to the date. R was convicted. On error

HELD:

I. The stealing of the bacon was the material matter of the charge.
2. The date of the offer to sell was not material to the offence.
3. The oath as to the date was not material to the issue, and was not
likely to induce the jury to give the readier credit to the sub-
stantial part of the evidence.

4. R was not guilty of perjury.

Error to judgment of circuit court of Rockingham county, rendered June 23d, 1882, affirming judgment of county

Statement-Opinion.

court of said county, on an indictment against James M. Rhodes for perjury, sentencing him to pay fine of $100 and costs of prosecution, and to confinement in jail for twelve months. The alleged purjury was that, whereas said Rhodes swore before justices examining W. R. Miller on charge of larceny of bacon, that said Miller offered to sell him bacon on 15th November, 1875. Rhodes afterwards, at the trial before the court, swore falsely and corruptly that he did not so state, but stated that said Miller offered to sell him bacon in December, 1875. Indictment failed to state accurately the day of the commission of the offence. To this judgment Rhodes obtained a writ of error and supersedeas.

Opinion states the other facts.

J. N. Liggett and H. V. Strayer, for the plaintiff in

error.

Attorney-General, for the Commonwealth.

LACY, J., delivered the opinion of the court.

The record shows the case to be as follows: A suit was instituted in the circuit court of Rockingham county on the 1st day of August, 1877, by one Wm. R. Miller against the plaintiff in error and two other persons, to recover damages for an alleged malicious prosecution of the said Miller by the said Rhodes; the defendant, and others, in that the said defendant, on the 18th day of May, 1877, at the county of Page, in the State of Virginia, appeared before one John Welfley, a justice of the peace for the said county of Page, and falsely and maliciously, and without any reasonble or probable cause, charged the said plaintiff with having stolen a lot of bacon, the property of one Paul Long, and caused the plaintiff to be arrested and imprisoned in the

Opinion.

county jail of the county of Rockingham, and to be carried in custody to the county of Page, where he was tried and acquitted.

On the 18th day of August, 1877, the said plaintiff in error was indicted in the county court of Rockingham for having committed the crime of perjury in the said trial of the said action in the circuit court mentioned above, in which he was examined as a witness. The indictment alleged that, at the circuit court begun and holden at the courthouse for the county of Rockingham, on the day

of February, in the year 1879, in a certain plea of trespass on the case, then tried, James M. Rhodes appeared as a witness for the defendant therein, and was duly sworn as such, and that upon the said trial certain questions became and were material, in substance, whether the said plaintiff therein (Miller) had, in the month of December, 1875, offered to sell to him, the said Rhodes, a certain lot of bacon, and if so, at what time, and also whether he, the said James M. Rhodes, upon the examining trial of Richard and Madison Miller upon the charge of feloniously entering in the night time a certain smoke-house, &c., of one Paul Long, &c., had, upon the 26th of May, 1877, in the county of Page before certain justices of the peace therein named, testified before said justices that said William R. Miller had offered to sell him a certain lot of bacon on the 15th of November, 1875; that the said James M. Rhodes then swore, &c., that the said Miller did, in the month of December, 1875, just before Christmas, offer to sell him the said bacon, and that he had not testified before the said justices that the said Miller had offered to sell him the said bacon on the 15th of November, 1875, and that he had made no such statement at that time; whereas in truth and in fact the said Miller had not offered to sell him any bacon in the said month of December, 1875, at any time in said month; and that the said Rhodes well knew that he