State v. Gallimon

• Decision Date: 30 June 1842
• Citation: 2 Ired. 372,24 N.C. 372
• Parties: THE STATE v. JAMES GALLIMON.
• Court: North Carolina Supreme Court

2 Ired. 372

24 N.C. 372

THE STATE

v.JAMES GALLIMON.

Supreme Court of North Carolina.

June Term, 1842.

Where the defendant is indicted for a perjury, committed on the trial of an issue in a former indictment, the indictment must set forth the finding of the former indictment in the proper court of the proper county, and should also set forth that indictment, or so much thereof as to shew, that it charged an offence committed in that county, and of which said court had cognizance, and also the traverse or plea of the defendant in that indictment, whereon the issue was joined. Judgment on an indictment, defective in these particulars, must be arrested.

The act of 1791 (Revised Code, c. 338, s. 3d,) is repealed by the Revised Statutes adopted in 1837, and the act of 1811 (Rev. Stat. c. 35, s. 12) does not cure such defects, for they are neither informalities nor refinements, within the meaning of that Statute.

The cases of the State v Haddock, 2 Hay. 152. State v Owen, 1 Mur. 152, commented on in State v Moses, 2 Dev. 452. State v Davis, 2 Car. L. Rep. 291. State v Neese, No. Ca. Term Rep. 270. State v Brown, 3 Murph. 224. State v Jim, 1 Dev. 142. State v Shaw, 2 Dev. 196. State v Aldridge, 3 Dev. 201. State v Fitzgerald, 1 Dev. & Bat. 408. State v Enlve, 4 Dev. & Bat. 376, cited and approved.

Appeal from the Superior Court of Cabarrus, at Spring Term, 1842, his Honor Judge PEARSON presiding.

This was an indictment for perjury in swearing corruptly and falsely, in a former indictment against one B. Erwin and others in the County Court of Cabarrus county, for an affray. It is unnecessary to state the facts proved on the trial and reported by the judge, and the various objections urged by the defendant's counsel, as the opinion of the Supreme Court is confined entirely to the motion in arrest of judgment. The verdict of the jury was against the defendant; whereupon his counsel moved in arrest of judgment, because the indictment did not recite the record of the County Court, in which the former indictment was found and tried; upon the ground that, the act of 1791 being omitted in the Revised Statutes, indictments for perjury must be drawn as at common law. The court overruled the motion in arrest; for, supposing the act of 1791 to be omitted, the act of 1811 is retained, and the act of 1811 is general and applicable to all indictments, and so includes the act of 1791, which is confined to indictments for perjury. The motion in arrest was overruled, and, judgment being given against the defendant, he appealed. The objections to the indictment urged on the motion in arrest of judgment are fully stated in the opinion of the court.

Barringer for the defendant . All indictments for perjury must be drawn as before the act of 1791, which is omitted in the Revised Statutes; and the defects in this indictment are not cured by the act of 1811. Every thing, constituting the crime of perjury as at common law, must be recited on the face of the indictment and proved as charged. Any variance will be fatal. State v Ammons, 3 Murp. 123. King v Dowlin, 5 Term Rep. 311. Queen v Carter, 6 Mad. 162. 2 Strange Rep. 775. State v Moses, 2 Dev. 452. Arch. Crim. Plead. 428, 429. 1 Esp. Rep. 97. 2 Russell on crimes, 538, note “y,” 2 Chitty's Crim. Law. Precedents in Wentworth, Rastall & Cokes Entires.

Attorney General for the State . The apparent defects in this indictment are cured by the act of 1811. Setting forth the record &c. at length is not matter of substance. State v Jeffreys, Tay. 216. State v Bryson, 1 Car. L. Rep. 503. State v M oses, 2 Dev. 452. 1 Stark. Ev. 434. Berryman v Wise, 4 T. R. 366. Roscoe on Ev. p. 7. State v Owen, 1 Murph. 452.

GASTON, J.

The principal question in this case arises on the motion in arrest of judgment. The indictment sets forth, that, at a Court of Pleas and Quarter Sessions, held for the county of Cabarrus, on the third Monday of April, 1841, before John Stile, Junior, B. W. Allison, William Barringer and James Young, Esquires, justices qualified by law to hold the said court, “a certain issue, in due manner joined in said court, between the State of North Carolina and one Benjamin Erwin, upon a certain indictment depending against the said Benjamin Erwin, for assaulting and beating one Michael Holbrook and for making an affray, came on to be tried by a jury of the county, in due manner sworn and taken for that purpose;” and that “upon the trial of said issue, James Gallimore did then and there appear, and was produced as a witness in behalf the said State against the defendant, Benjamin Erwin;” and proceeds to charge that the said James then and there took his corporal oath to testify the truth, the whole truth, and nothing but the truth, upon the said issue, “they the said John Stile, Junior, B. W. Allison, William Barringer and James Young, Esquires, justices aforesaid, then and there having competent authority to administer the said oath;” that a certain enquiry became material on the trial of the said issue, and that thereupon the said Gallimore did corruptly, maliciously and falsely depose, swear and give in evidence as is therein particularly stated; and then it proceeds to falsify the testimony so given, and to aver that therein the said James did commit wilful and corrupt Perjury. The objection to the indictment is, for that it does not distinctly and certainly set forth the facts, which shew that the alleged false oath was taken in a judicial proceeding before a court having jurisdiction thereof.

It is a general rule, that every indictment should charge explicitly all the facts and circumstances, which constitute the crime, so that, on the face of the indictment, the court can with certainty see that the indictors have proceeded upon sufficient premises, and afterwards, when these facts and circumstances are confessed or found to be true, can behold upon the record an undoubted warrant for awarding the judgment of the law. According to this rule, the indictment in this case should have averred, as a fact, the finding of an indictment in the County Court of Cabarrus, against Benjamin Erwin, and should have set forth that indictment or so much thereof, as to shew that it charged an offence committed within that county, and of which said court had cognizance; and also have set forth the traverse or plea of the said Benjamin, whereon the issue was joined. Had it done so, it would then have appeared, upon the face of the indictment, whether the alleged false oath was taken in a judicial proceeding before a court having jurisdiction thereof. Nor on common law principles is the want of precision in this matter helped by the averment in the indictment, that the justices, before whom the oath was taken, had competent authority to administer said oath, for this is but the averment of a legal inference and not of a distinct fact, and an averment by the indictors, whose province it is to state facts, and who must leave legal inferences to be drawn by the court.

We believe, therefore, that at common law this indictment must be held insufficient, and the next and chief enquiry is, whether the defects be cured by any statutory provision.

The necessity at common law, in indictments for perjury, of shewing the proceedings, wherein the false oath was taken, caused these indictments to be drawn out frequently with great prolixity, and, by reason of inaccuracies in them, the guilty were occasionally enabled to escape with impunity. To remedy these inconveniences, the British Parliament passed the Statute 23rd George the 2nd. This Statute, though enacted before the Revolution, was not in force in North Carolina; but in 1791 our Legislature incorporated its provisions into the act then passed, entitled “An Act for the punishment of such persons as shall procure or commit any wilful perjury,” (Revised Code, ch. 338, sect. 3d.) By this act it is enacted “that in every presentment or indictment to be prosecuted against any person for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court or before whom the oath or affirmation was taken, (averring such court or such person or persons to have a competent authority to administer the same,) together with the proper averment or averments to falsify the matter or matters wherein the perjury or perjuries is or are assigned, without setting forth the bill, answer, information, indictment, declaration or any part of any record or proceedings, either in law or...