State v. Bobbitt

• Decision Date: 31 January 1874
• Citation: 70 N.C. 81
• Court: North Carolina Supreme Court
• Parties: STATE v. STEPHEN BOBBITT.

70 N.C. 81

STATE

v.STEPHEN BOBBITT.

Supreme Court of North Carolina.

January Term, 1874.

A motion in arrest of judgment, rests on error upon the face of the record; and any statement of the case by counsel tends to confuse instead of aid the Court, who are oblige to examine the whole record, and pronounce judgment according to the very right and merits apparent thereon.

In an indictment for perjury, the question whether or not, one of the parties charged with an affray in the indictment, upon the trial of which the oath alleged as false was taken, retreated “thirteen or twelve paces” before he returned the blows of the other party, is a material question, the “thirteen or twelve paces,” being mere surplusage. So too, is the question whether not, one of said parties was stricken “two or three times,” before striking the other party, the number of times being surplusage, where an averment of a blow would have sufficed.

An averment, that the defendant “deposed and gave in evidence to the jury wilfully and corruptly,” amounts to a charge that he swore wilfully and corruptly.

A traverse in an indictment, pursuing the words of the defendant in taking the oath, is sufficient in an indictment for perjury.

INDICTMENT, Perjury, tried before Watts, J., at the Fall Term, 1873, of WARREN Superior Court.

The offence was charged in the following indictment:

“The jurors for the State upon their oath present, that at a Superior Court, holden for the county of Warren, on the second Monday after the second Monday of February, A. D. 1872, at the Court House, in Warrenton, in said county, before the Honorable William A. Moore, Judge of the said Court, one Wiley G. Coleman and one George Bobbitt, were in due form of law tried upon a certain indictment, then and there pending against them, by a certain jury of the Court then and there duly sworn and taken between the State and the said Wiley G. Coleman and George Bobbitt, in that behalf, for that they, the said Wiley G. Coleman and the said George Bobbitt, on the 1st day of January, A. D. 1872, with force and arms, at and in said county of Warren, did unlawfully assemble together to disturb the peace of the State, and so being then and there, unlawfully assembled together, did mutually assault and beat each other, and to, with and against each other, in a public place, did fight and make an affray, to the terror and disturbance of divers of citizens of the State, then and there being, in contempt of the State and its law, and against the peace and dignity of the State.

And the jurors aforesaid, upon their oath aforesaid, do further present, that upon the trial aforesaid, one Stephen Bobbitt, late of said county, did then and there appear as a witness for and on behalf of the State, against the said Wiley G. Coleman and George Bobbitt, and that the said Stephen Bobbitt did then and there, in open Court, in the Court House aforesaid, before the said Judge, take his corporal oath, and was duly sworn upon the Holy Gospel of God, to speak the truth and the whole truth and nothing but the truth, touching the premises aforesaid, (the said Judge then and there having competent authority and power to administer the said oath to the said Stephen Bobbitt,) and it then and there became and was a material question upon the trial of the said Wiley G. Coleman and George Bobbitt, whether the said Wiley G. Coleman did strike the said George Bobbitt, before the said George Bobbitt struck the said Wiley G. Coleman; and that it became and was then and there another material question upon the trial aforesaid, whether or not the said George Bobbitt retreated thirteen or twelve steps before he, the said George Bobbitt, struck the said Wiley G. Coleman.

And the jurors aforesaid, upon their oath aforesaid present, that the said Stephen Bobbitt being sworn as aforesaid, wickedly devising and intending the due course of justice to pervert, and the said Wiley G. Coleman to injure, then and there,...