State v. Dowd
| Decision Date | 25 November 1931 |
| Docket Number | 425. |
| Citation | 161 S.E. 205,201 N.C. 714 |
| Parties | STATE v. DOWD. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Moore County; MacRae, Special Judge.
J. L Dowd was convicted of perjury, and he appeals.
New trial.
The Page Trust Company instituted a civil action for the collection of a note signed by K. M. Phillips and the defendant. The plaintiff filed a verified complaint alleging the due execution of the note by the makers and the payment thereon of only $4.50. Phillips filed no answer; the defendant filed a verified answer denying that he had executed the note. Thereafter he was prosecuted upon an indictment charging him with the unlawful, corrupt, willful and felonious commission of perjury "in a verified answer to a certain action pending in the Superior Court for the County of Moore," etc., and was convicted. From the sentence pronounced he appealed, assigning error.
W. R Clegg, of Carthage, for appellant.
Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.
Lord Coke defined "perjury at common law" as "a crime committed when a lawful oath is administered, by any that hath authority, to any person in any judicial proceeding, who sweareth absolutely and falsely in a matter material to the issue or cause in question, by their own act or by the subornation of others." 3 Coke, Inst. 164. The requisites are the false oath, lawfully administered in a judicial proceeding or in the course of justice, and willfully and corruptly taken, in regard to a matter material to the issue or inquiry. Pegram v. Stoltz, 76 N.C. 349. At common law false swearing is a distinct offense. In several states, laws have been passed enumerating certain acts which, though not within the common law definition, are yet defined as perjury.
The defendant's prayer for instructions to the jury, his motion to quash the indictment, and his motion to dismiss the action, seem to be based on the theory that the defendant was prosecuted for perjury at common law, but he was not; and for this reason, if for no other, his prayer and his motion were properly denied. Neither was there any error in refusing his motion to amend the bill. An indictment duly returned upon oath cannot usually be amended by the court without the concurrence of the grand jury by whom it was found or the consent of the defendant. State v. Sexton, 10 N.C. 184, 14 Am. Dec. 584; State v. Cody, 119 N.C. 908, 26 S.E. 252, 56 Am. St. Rep. 692.
The defendant is entitled...
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