Opinion
May Term, 1819.
From Pitt.
Indictment charged the Defendant with a perjury, committed on the trial of an issue joined between the State and six persons, who are named. The record produced in support of this charge, shewed that on the trial docket, the case stood as one between the State and the six persons thus named, and in the column appropriated for pleas, the plea of "not guilty" was entered; and on the minute docket where the verdict of the Jury was spread out, the case stood as one between the State and seven persons. The record produced supports the allegation of the indictment; for the record shews, that an issue was joined between the State and the six persons named in the indictment, but does not shew that an issue was joined between the State and the seventh person, tried with the other six; and the Court cannot presume it.
Where a Defendant is tried, and no issue is joined, the Court will award a venire de novo, either to the Defendant or to the State.
This was an indictment for perjury. It charged, "that at a Court of Pleas and Quarter Sessions, held for the County of Pitt, before the Justices of the said Court, on the first Monday in August, 1817, at the town of Greenville, agreeably to an act of Assembly in such case made and provided, a certain issue duly joined in the said Court, between the State aforesaid and James Cason, Major Harris, Robert Thomas, John Hathaway, Susannah Hathaway and Lethe Cason, in a certain plea at the instance of the State, on an indictment in which the said State prosecuted, came on to be tried in due form of law, and was then and there tried by a certain Jury of the country, in that behalf duly sworn and taken between the parties aforesaid; and upon the trial of the said issue so joined between the parties aforesaid, Abraham Hardie, late of the County of Pitt, labourer, appeared as a witness for and on behalf of the said State, in the plea and issue above mentioned and was then and there duly sworn, and took his corporal oath upon the Holy Gospel of God, before the said Court, to speak the truth, the whole truth, and nothing but the (233) truth, touching and concerning the matters in question in the said issue the said Court then and there having sufficient and competent power and authority to administer an oath to the said Abraham Hardie in that behalf," c.
The indictment then assigned the perjury. Upon the trial, the Attorney General offered in evidence the record of the County Court, which shewed that a bill of indictment had been preferred in that Court, and found a true bill by the Grand Jury, against all the persons named in the bill as Defendants thereto, and also against Alafair Hathaway. Upon the trial docket of the County Court, the case stood, "The State v. James Cason, Major Harris, Robert Thomas, John Hathaway, Susannah Hathaway, Lethe Cason," and this docket in the proper column, shewed the plea of "not guilty." Upon the minute docket, where the verdict of the Jury was spread out, the case stood, "The State v. James Cason, Major Harris, Robert Thomas, John Hathaway, Susannah Hathaway, Lethe Hathaway, Alafair Hathaway." The verdict was, "The Jury find the Defendants guilty."
It was objected, on behalf of the Defendant that the record produced did not support the allegation of the indictment, as the indictment charged that the perjury was committed upon the trial of an issue joined between the State and six persons, naming them; and the record produced, shewed that a trial had been had upon an issue joined between the said six persons, and that a seventh person had also been tried as a co-defendant with the said six; and it must be taken for granted, that he also pleaded; that, therefore, the indictment did not truly recite the record. The presiding Judge overruled the (234) objection; and the Defendant was convicted. A rule was obtained by the Defendant to shew cause why a new trial should not be granted: which rule was discharged by the Court, and the Defendant appealed.
The indictment charges the Defendant with a perjury, committed on the trial of an issue joined between the State and six persons, who are named; and upon a reference to the trial docket of the Court wherein the issue was pending, and the trial took place, the names of the same six persons are found as parties to the issue, and the plea of "not guilty" is placed in the column appropriated for pleas. There is, therefore, no evidence, arising from the only docket where such evidence is sought for, that any plea was entered by the seventh person. And if the indictment had charged that the issue was joined between the State and seven persons, and the objection had been taken that only six had pleaded, the Attorney General could have placed but little reliance on the circumstances now set up to prove that seven had pleaded. It may be confidently concluded from those circumstances that seven were put upon their trial, and the whole found guilty; and if it were not known, that in point of fact, it is no uncommon thing for a man to be tried on an indictment, when through inadvertence or the hurry of business, no plea has been entered, the finding of the Jury might be taken as evidence of a plea having been entered. But the contrary has been decided in this Court upon more than one occasion, where a venire de novo has been awarded, after a verdict for the Defendant in one instance, and for the State in another, because the docket did not shew that a plea had been entered in either. The decision of the Judge in the Court below was unquestionably correct, and the rule for a new trial must be discharged. (235)