State v. Gates

• Decision Date: 08 December 1890
• Citation: 107 N.C. 832,12 S.E. 319
• Court: North Carolina Supreme Court
• Parties: State. v. Gates.

107 N.C. 832

12 S.E. 319

State.

v.Gates.

Supreme Court of North Carolina.

Dec. 8, 1890.

Perjury—What Constitutes—Indictment.

1. Neither Code N. C. § 737, which authorizes the court to tax prosecutors with costs, nor Acts N. C. 1889, c. 34, extending the power to tax costs against a prosecutor to cases in which the defendant is discharged from arrest for want of probable cause, confers power to tax costs against a prosecutor in a case where the bill is ignored by the grand jury, where there is no evidence that defendant was under arrest, and perjury cannot be predicated on false swearing made on the trial of a motion for such taxation of costs.

2. An indictment for perjury drawn in pursuance of Acts N. C. 1889, c. 83, simply charging that defendant "did commit perjury, " pointing out the name of the court and of the action in which it was alleged to have been committed, and the words sworn to by defendant, which are alleged to have been false, is sufficient.

Following State v. Peters, ante, 74.

Appeal from superior court, Durham county; Womack, Judge.

Gates appeals from a conviction for perjury.

W. W. Fuller, for appellant.

The Attorney General, for the State.

Clark, J. In order to constitute perjury, the false swearing must be in a matter material to the issue. When, therefore, the court has no jurisdiction of the subject-matter in the investigation of whichthe false swearing is alleged to have taken place, there could be no issue, in contemplation of law, and the false swearing is not perjury. In the present case, the perjury is alleged to have been committed in the trial of a motion to mark and tax one Leathers with the costs in a criminal action in which the grand jury had ignored the bill. The authority of the court to tax prosecutors with costs is given in Code, § 737, and no power is conferred by that section to tax a prosecutor with costs when the bill is ignored. State v. Horton, 89 N. C. 581; State v. Cockerham, 1 Ired. 381. Nor is this changed in the present instance by the recent amendment made to section 737, by chapter 34, Acts 1889, which extends the power to tax costs against a prosecutor to cases in which the defendant is discharged from arrest for want of probablecause, for there is no evidence or allegation that the defendant in the ignored bill was under arrest or discharged therefrom. It was pointed out in State v. Peters, ante, 74, (at this term,) that if the court had jurisdiction of the subject-matter and of the person in the proceeding in which the false swearing is alleged to have occurred, it is immaterial whether the court (there a magistrate) correctly or wrongly took final jurisdiction, or bound over to court, convicted, or discharged the defendant, for the jurisdiction was to be determined by the facts charged or proven by the state in such proceedings, and not by what occurred during the trial. The test, according to the authorities, seems to be that if, upon the state of facts alleged by the state or (in a civil action) by the plaintiff, the court has jurisdiction, there is an issue if they are denied by the defendant, and any false swearing upon a matter material to such issue is perjury, although on the trial it might turn out that upon the truth of the facts as found, there was not any case against the defendant, or none of which the court had jurisdiction. Here the contention of the state was that one Leathers had instituted a criminal action frivolously and...