delivered the opinion of the court.

H. IT. Fair was convicted of perjury in the criminal court at Memphis, and sentenced to three years in the penitentiary.

He put in a plea of former acquittal for the same offense, which was held bad, and thereupon he was tried *456by a jury and found guilty. We are furnished with no bill of exceptions as to 'the proof or the charge of the court, and must therefore pesume that there was no error.

But there is a bill of exceptions setting out the record of the former case, which is relied on upon the plea of former acquittal. It does appear from this record that defendant was acquitted of the charge of perjury, based on the same oath on which the present indictment is based. But in the former it is charged in the indictment that the oath taken ivas upon “the Holy Gospel,” whereas, in the present indictment the charge is that he was sworn with an uplifted hand.

It was held in the case of Williams v. The State, 7 Hum., 48, that if the bill of indictment charge that the prisoner swore upon the Holy Evangelists, and the proof show that he appealed to God with an uplifted hand the variance is fatal.

It follows that an acquittal upon the former indictment was no bar to a trial on the present indictment, and that there was .no error -in disallowing the plea of former acquittal.

The judgment is affirmed.