Opinion
(December Term, 1845.)
1. In an indictment for perjury it is not necessary to set forth the pleadings in the former case in which the perjury is alleged to have been committed; our act of Assembly of 1842, ch. 49, having altered the common law in that respect.
2. There is but one statute in this State punishing the crime of perjury, Rev. Stat., ch. 34, secs. 50 and 52, and therefore an indictment for that crime which concludes against the statute is right.
APPEAL from BURKE, at Fall Term, 1845; Bailey, J.
Attorney-General for the State.
No counsel for defendant.
The defendant was convicted upon an indictment for perjury, and moved in arrest of judgment; but the Court overruled the motion and passed sentence on the defendant, and he appealed.
The indictment states, by way of inducement, "that at the court of pleas and quarter sessions for the county of Burke, holden at the courthouse in, etc., on etc., before, etc., justices, etc., a certain issue between the State and one James York, in due manner joined (2) upon a bill of indictment then and there pending against the said James York for an assault and battery in and upon the body of one Solomon Hoyle, came on to be tried, and was then and there in due form of law tried by a jury, etc.; and that upon the said trial Solomon Hoyle, the defendant, did then and there appear, etc. The indictment concludes "against the form of the statute in such case made and provided."
Two objections were taken to the indictment. One, that it does not set out the former indictment against York nor the plea of York therein, upon the trial of which the perjury is alleged to be committed; and the other, that the indictment does not conclude against the form of the statutes, in the plural.
The Court deems neither objection tenable. At common law, in order to show that the false oath was taken before a court having jurisdiction of the matter, and in a judicial proceeding touching the same, it was necessary that the indictment should set forth the pleadings in the former case, as the declaration, or indictment, the issue joined, and all the proceedings at the trial. But this rendered the indictments for this crime so prolix and complicated that there was always danger of failing to obtain judgment, even after conviction. The inconveniences were remedied in England by the statute 23 Geo. II., which enacted that it should be sufficient to set forth the substance of the offense and by what court or before whom the oath was taken (averring such court or person to have competent authority to administer the same), together with proper averments, etc., "without setting forth" (among other things) "the indictment or any part of any record or proceeding in law, other than as aforesaid." Since that time indictments (3) have not gone more into detail in England than that now under our consideration, which, indeed, conforms to the best precedents. It appears to have been taken from that given by 2 Chitty Cr. L., 452, which, the author says, was settled with great care by a late eminent lawyer, and on which there was a conviction. In other instances, the matter is stated yet more generally, thus: "that a certain indictment then depending in the said court against A. B. came on to be tried, and was then and there in due form of law tried by a certain jury," etc.; or, "that J. C. was in due form of law tried by a certain jury of the said county, and there duly sworn and taken, between the King and the said J. C. upon a certain indictment then and there depending against the said J. C. for," etc. 2 Chit. Cr. L., 460-463. Upon an indictment in that form Dowlin's case turned, 5 Term., 311, and it was held sufficient in that respect. The statute 23 Geo. II. was reenacted in the same words in this State in 1791, ch. 7; but it was repealed in 1837, Rev. Stat., ch. 1, sec. 2. That caused the decision in S. v. Gallimore, 24 N.C. 372; but at the succeeding Assembly the inconveniences arising from that state of the law were obviated by a second enactment of the act of 1791. Laws 1842, ch. 49. That, therefore, dispenses with those statements, the omission of which is the foundation of the first objection.
There is but one statute punishing the crime of perjury, that which is contained in Revised Statutes, ch. 34, secs. 50 and 52; S. v. Ball, 25 N.C. 506; and, consequently, the conclusion of this indictment is right. The act of 1842 relates only to the forms of prosecuting, and not to the creating, defining, or punishing the offense.
PER CURIAM. No Error.
Cited: S. v. Roberson, 98 N.C. 753; S. v. Murphy, 101 N.C. 701.
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