State v. Knight

• Decision Date: 31 January 1881
• Citation: 84 N.C. 789
• Court: North Carolina Supreme Court
• Parties: STATE v. JOSEPH KNIGHT.

84 N.C. 789

STATE

v.JOSEPH KNIGHT.

Supreme Court of North Carolina.

January Term, 1881.

INDICTMENT for perjury tried at Fall Term, 1880, of MARTIN Superior Court, before Schenck, J.

The substance of the charge in the bill of indictment is set out in the opinion of this court. The counsel for defendant first moved to quash the bill on several grounds, which motion was overruled. The defendant then entered his plea of “not guilty,” but upon the trial the jury convicted him. He then moved in arrest of judgment, for that, the justice of the peace who administered the oath in which the perjury was assigned had no authority so to do. Upon overruling this motion, the court pronounced judgment and the defendant appealed.

Attorney General, for the State .

Mr. J. W. Albertson, Jr., for the defendant .

ASHE, J.

In this case the defendant before plea moved the court upon several grounds to quash the indictment, but the motion was disallowed, in which ruling we hold there was no error; for where the application is made on the part of the defendant, the courts have almost uniformly refused to quash an indictment when it appeared to be for some enormous crime, such as treason or felony, perjury, forgery, &c. Arch. Cr. Pl., 66. And in State v. Colbert, 75 N. C., 368, READE, J., delivering the opinion of the court, says: “Quashing indictments is not favored. It releases recognizances and sets the defendant at large, when it may be he ought to be held to answer upon a better indictment. It is however allowable, and in cases where it puts an end to the prosecution altogether, it is advisable; as when it appears the court has not jurisdiction, or where the matter charged is not indictable in any form. Mr. Chitty in his Criminal Law (p. 300) says, ‘the courts usually refuse to quash on the application of the defendant, where the indictment is for a serious offence, unless upon the plainest and clearest grounds, but will drive the party to a demurrer, or motion in arrest of judgment, or writ of error.’ It is therefore a general rule that no indictment which charges the higher offences, as treason or felony, or those crimes which immediately affect the public at large, as perjury, forgery, &c., will be thus summarily dealt with.”

In the view we take of this case, it is unnecessary to consider any of the grounds of the motion to quash. For after verdict the defendant moved to arrest judgment on the ground that the justice had no authority to administer the oath to the witness examined by the coroner on the inquest. This presents a question worthy of consideration.

The bill of indictment charges that the defendant “came before J. H. Ellison, coroner of the county of Martin, and a jury of good and lawful men duly summoned and sworn to make inquiry, when and how and by what means one Henry Skiles came to his death; and the said Joseph Knight being then and there duly sworn upon the Holy Evangelist of Almighty God by one J. L. Ewell, a justice of the peace in and for the county of Martin, then and there having sufficient power and authority to administer the said oath to the said Joseph Knight, in that behalf, touching and concerning the manner and cause of which the said Henry Skiles came to his death, the said J. L. Ewell, justice of the peace as aforesaid, then and there administered said oath to Joseph Knight, in the immediate presence and at the request and direction of the said J. H. Ellison, coroner as aforesaid, did then and there upon his oath charge one William A. Weathersbee, before the said Ellison, coroner as aforesaid and the said jury of good and lawful men, duly summoned and sworn, with having assaulted and cut with a knife the said Henry Skiles,” &c.

A justice of the peace has no authority to hold an inquisition super visum corporis. Shultz, ex parte, 6 Whar., 269. With the inquisition, J. L. Ewell had and could have no official connection. In his official capacity as justice of the peace, he had no power or authority to administer an oath in that case. And where on an indictment for perjury it appears the accused was sworn only by a justice of the peace who had no jurisdiction of the case before him, and therefore had no authority to...