Opinion
(Spring Riding, 1798.)
1. In an indictment for perjury in swearing to attendance as a witness, the prosecutor is a competent witness, though he be the person liable to pay for the attendance sworn to.
2. In order to constitute perjury, the oath must be taken in some judicial proceeding, and before some person empowered to administer the oath assigned. A mere voluntary oath cannot amount to perjury. Therefore, a man cannot be indicted for perjury in swearing before a justice to his attendance in court as a witness, the clerk only being authorized to administer such oath.
INDICTMENT for PERJURY in swearing to his attendance as a witness in the County Court of MARTIN, before a justice of the peace, and charging for eight days attendance, whereas he has not attended eight days, etc.
The prosecutor may be a witness, though he be a person who is liable to pay for the attendance; for a verdict and conviction in this prosecution cannot be given in evidence to prove it. The evidence ticket being taxed in the execution is a recovery in the form prescribed by law. But it is alleged on the part of the defendant that the justice was not empowered by any law to take probate of this evidence ticket; the indictment fails at once, and it is useless to proceed any further in the trial. This indictment concludes against the act of Assembly, and this subjects to the punishment of perjury only where the oath is taken before some officer authorized to take it pursuant to the laws of the State. In order to make it a perjury, the oath must be taken in some judicial proceeding, and before some person empowered to administer that oath that is taken. A mere voluntary oath cannot amount to perjury.
The Attorney-General endeavored to controvert these practices, and offered some authorities to show the contrary.
PER CURIAM. The doctrine is incontrovertible. I have no doubt upon the subject. Not an instance can be shown to the contrary. Perhaps the defendant might be indicted for a misdemeanor. I think I have known some prosecutions of that kind supported.
Verdict for the defendant.
NOTE — As to the competency of the witness, see S. v. Coulter, 2 N.C. 3; S. v. Hamilton, post, 288; S. v. Hasset, 1 N.C. 139; S. v. Kimbrough, 13 N.C. 431. Upon the second point, see S. v. Alexander, 11 N.C. 182. Where the court has jurisdiction, perjury may be properly assigned in an oath taken before it, though the witness was erroneously sworn. S. v. Molier, 12 N.C. 263.