State v. Ledford
| Decision Date | 31 December 1845 |
| Citation | 6 Ired. 5,28 N.C. 5 |
| Court | North Carolina Supreme Court |
| Parties | THE STATE v. SAMUEL LEDFORD. |
When the Perjury, on which an indictment is founded, is alleged to have been committed on the trial of a cause at a special term of a Superior Court, it is not necessary to set forth in the indictment the order of the Judge directing such special term to be held, nor the appointment by the Governor of the particular Judge, who is to hold it.
Nor is it necessary to prove either of those facts on the trial of the indictment.
A Judge, who by the general law and a permanent commission, holds a Superior Court, is not to require evidence that he is the Judge of the Court; and the record, made by him, establishes to those who succeed him, that he held the Court at the terms at which, according to the purport of the record, he appears to have hold them.
The regularity of the proceedings of a Superior Court in point of time, as in other things, is to be presumed, unless the contrary appears.
The case of the State v. Kimborough, 2 Dev. 431, cited and approved.
Appeal from the Superior Court of Law of Yancy County, at the Fall Term, 1845, his Honor Judge BAILEY presiding.
The defendant was convicted in the Superior Court of Yancy of Perjury, upon an indictment, which charges “that at a Superior Court of Law for the County of Yancy held at &c., on the second Monday after the fourth Monday of June A. D. 1845, before the Honorable David F. Caldwell, one of the Judges of the Superior Courts of Law for the State, a certain issue between one Marcus L. Penland and one John Ledford in a certain plea of trespass on the case, wherein the said Marcus L. Penland was plaintiff and the said John Ledford was defendant, came on to be tried in due form of law and was then and there tried by a Jury,” &c. The indictment then states that the defendant appeared as a witness for John Ledford, and was duly sworn &c. “before the Hon. David F. Caldwell, so being Judge as aforesaid, that the evidence &c. (he the said David F. Caldwell, Judge as aforesaid, then and there having sufficient and competent authority to administer the said oath to the said Samuel Ledford in that behalf.”) It then states the materiality of certain questions, the evidence given by the Defendant relative thereto, and assigns the Perjury in the usual form.
For the purpose of shewing on the trial of the present indictment, that the evidence of the prisoner was given in the Superior Court of Law for Yancy, and upon the trial of an issue joined in a suit between the persons mentioned in the indictment, the Solicitor for the State offered to read the records of the Superior Court of Law for Yancy, showing that the trial took place in that Court as charged. But the Counsel for the prisoner remarked, that “it was unnecessary to read them, as the prisoner admitted, that a special term of the Court was held, and that Judge Caldwell presided, and that the prisoner was sworn on the trial, as set forth.”
In the defence, it was admitted that the prisoner swore falsely, but it was insisted that he did not swear corruptly. On that point the Court left the case to the jury, who found the prisoner guilty.
The prisoner's Counsel moved for a new trial, because Judge CALDWELL's commission was not proved on the trial; and because it was not proved by the record, that the Judge, who held the Superior Court of Yancy at the preceding Spring Term, had ordered the Term of the Court to be held on the 2d Monday after the 4th Monday of June, 1845. The Court over-ruled the motion.
The Counsel then moved in arrest of judgment, because the indictment did not set forth an order of the Court at the preceding term, for the term held in July, nor charge that Judge Caldwell was appointed by the Governor to hold it. This motion was also over-ruled, and sentence passed on the prisoner; and he then appealed.
Attorney General, for the State.
No Counsel in this Court for the defendant.
The objections will be most conveniently disposed of, by first considering those to the indictment. It is certainly necessary the indictment should shew, that the false oath was taken in a judicial proceeding, and, in order thereto, it must shew a matter pending in some Court having competent jurisdiction, and held by a person authorised to do so.
Those matters must be truly laid, because the proof must establish them in order to constitute the imputed Perjury. Here, the indictment lays the trial of a certain suit in the Superior Court of Law for Yancy County, at a certain term of that Court, which was held on the 2d Monday after the 4th Monday of June, 1845, by and before Judge Caldwell, one of the Judges of the Superior Courts of Law for the State, and lays the Perjury to have been committed on that trial. This we hold to be sufficient. The act of 1842, c. 49, (being the act of 1791, c. 7, re-enacted,) expressly makes it sufficient for the indictment to set forth “by what Court, or before whom the oath was taken, (averring such Court or person to have competent authority to administer the same,) without setting forth any part of any record, and without setting forth the commission or authority of the Court or person before whom the Perjury was committed.” There is no doubt, that on the trial the evidence must establish, that the particular Court was held, and duly held, at the...
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Gray v. State
... ... been given to it by their courts as was done by the courts of ... England. 2 Bish. Cr. Pr., sec. 848. See, also, the People v ... Phelps, 5 Wend. [N. Y.] 9; Campbell v. People, 8 Wend ... [N. Y.] 636; Commonwealth v. Knight, 12 Mass ... 274 [7 Am. Dec. 72]; State v. Ledford, 28 N.C. 5; ... State v. Davis, 69 N.C. 495; and State v ... Stillman, 7 Cold. [Tenn.] 345. *** It follows, ... therefore, that it is now unnecessary in this state to set ... forth the record of the case upon the trial whereof the false ... testimony was given, or to aver the ... ...
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