State v. Peters

• Decision Date: 06 November 1890
• Citation: 12 S.E. 74,107 N.C. 876
• Parties: STATE v. PETERS.
• Court: North Carolina Supreme Court

12 S.E. 74

107 N.C. 876

STATE v. PETERS.

Supreme Court of North Carolina

November 6, 1890

Syllabus by the Court.

1. When perjury is charged to have been committed by a witness in the trial of a criminal proceeding which was begun by warrant, if the court had jurisdiction to investigate the offense charged, it is no defense that the warrant was issued without complaint or affidavit.

2. To prove the falsity of the oath, the evidence is not necessarily to equal in weight the testimony of two witnesses. It is sufficient if there is the testimony of one witness, and corroborative circumstances sufficient to turn the scale against the oath which is charged to have been false.

3. The form of indictment for perjury prescribed by chapter 83, Acts 1889, is sufficient and legal.

4. The formal conclusion, "against the peace and dignity of the state," and "against the form of the statute," etc., is unnecessary in an indictment for any offense whatever, but is mere surplusage. State v. Kirkman, 104 N.C. 911, 10 S.E. Rep. 312, approved.

5. When time is not of the essence of an offense, as in perjury, the omission to charge any time in the indictment is not ground to arrest judgment. Code, § 1189.

6. Where the indictment for perjury alleges it to have been committed in an action wherein "the state was plaintiff and A. B. defendant," it is no variance if the warrant was entitled "State and City of G. vs. A. B."

7. When the indictment alleges the perjury to have been committed in the "trial of an action between the State vs. A B.," it is immaterial whether the court, if it had jurisdiction of the subject-matter, erroneously or correctly assumed or refused to assume final jurisdiction, or whether it acquitted, convicted, or bound over the defendant in such action. A preliminary trial is a trial of an action within the statute.

8. The statute has merely simplified the form of indictment for perjury. The constituent elements of the offense remain unchanged, and require the same proof as heretofore.

Indictment for perjury, tried before WOMACK, J., and a jury, at May term, 1890, of Guilford superior court. The indictment was as follows: "The jurors for the state upon their oath present that George Peters, of Guilford county, did unlawfully commit perjury upon the trial of an action in the mayor's court of the city of Greensboro, before James W Forbes, mayor, in Guilford county, wherein the state was plaintiff and Amos Phillips was defendant, by falsely asserting on oath that he (meaning the said George Peters) had not purchased any spirituous liquors from Amos Phillips less than half a pint on Sunday, April 27, 1890, knowing the said statement to be false, or being ignorant whether or not said statement was true, against the form of the statute in such case made and provided, and against the peace and dignity of the state." The false swearing was alleged to have taken place before the mayor of Greensboro, in the trial of Amos Phillips upon the following warrant, which was introduced in evidence: "State and City of Greensboro against Amos Phillips, before James W. Forbes, mayor. Warrant for retailing. State of North Carolina to the Chief of Police of the City of Greensboro, or other lawful officer of Guilford County,--Greeting: Whereas, complaint has been made before me this day, on the oath of W. J. Weatherly, that Amos Phillips, on or about the 28th day of April, 1890, with force and arms, at and in the county aforesaid, and within the city limits, did willfully and unlawfully sell spirituous liquors inside the corporation to one George Peters, in quantity less than five gallons, without having license, against the statute in such cases made and provided, against the peace and dignity of the state, and in violation of the city ordinance, (section 8. c. 15, p. 110:) These are therefore to command you forth-with to apprehend the said Amos Phillips and him have before me at the mayor's office, then and there to answer the said charge, and be dealt with according to law. Given under my hand and seal this 7th day of May, A D. 1890. JAS. W. FORBES, Mayor. [Seal.]". The evidence is substantially stated in the opinion. The jury returned a verdict of guilty. Motion in arrest of judgment, on the ground that the indictment was not sufficient in its averments to charge the crime of perjury. Motion denied. Sentence pronounced as in the record from which defendant appealed.

The Attorney General, for the State.

John W. Graham, for defendant.

CLARK, J., (after stating the facts as above.)

The defendant's counsel asked a witness, "Was not the warrant on which Amos Phillips was tried issued without a sworn complaint or affidavit being made by any person whatever?" The indictment charged the perjury to have been committed in that trial. The question was ruled out on objection by the state, and defendant excepted.

In State v. Bryson, 84 N.C. 780, ASHE, J., in construing the act which is now Code, § 1133, says that no written affidavit or complaint is essential, and that the appellate court "can only look at the warrant which is the complaint," and "cannot look behind the warrant for objections lying in the defects or irregularities of the preliminary evidence." If the objection now made could not have availed Phillips on appeal a fortiori, it could not be raised in this collateral way by the defendant. In England, where a written information on oath, it seems, is necessary to the validity of a warrant, it was held by a full bench in the court of criminal appeals in a recent case--(Reg. v. Hughes, 14 Cox, Crim. Cas. 284 (1879)--that on an indictment for perjury, alleged to have been committed by a witness in a case where the warrant was issued without either written information or any oath whatever, this irregularity could not avail the witness in such case when on trial for perjury committed in such action any more than whether the court in such case pronounced a legal or illegal judgment. Those are matters which concerned the defendant in that case, but not the witness if the court had jurisdiction of the offense charged in the warrant. In State v Lavalley, 9 Mo. 834, the court says that it is no defense for a person charged with perjury to show that the court committed error in its proceeding, provided it had jurisdiction of the subject-matter and of the parties, and that any other rule would change the issue, so that, instead of trying the defendant for false swearing, the court would review the regularity and correctness of the proceeding in another case. In State v. Alexander, 4 Hawks, 182, the court upon the face of the warrant had no jurisdiction of the action in which the false oath was taken. The jurisdiction depends not upon the affidavit preliminary to issuing the warrant, but on the nature of the offense charged in the warrant. The defendant asked the court to instruct the jury "that, as the evidence of Weatherly and others did not establish the fact that the liquid which Phillips had was spirituous, and that as their evidence, with the other circumstances taken together, only afforded an inference that it was spirituous liquor, it was not sufficient to convict of an indictment for perjury," and further "that no witness corroborated the evidence of Weatherly as to the sale by Phillips to the defendant, nor was there any confirmatory circumstances as to the sale itself from Phillips to defendant, and that it amounted only in either of above cases to the oath of Weatherly against the oath of Peters, the defendant, and that such was not sufficient to warrant a conviction for perjury." The court did not give these instructions, and defendant excepted. A witness for the state testified that on the Saturday night before the Sunday (April 27, 1890) on which the illegal sale of spirituous...