State v. Smith

• Decision Date: 30 March 1949
• Docket Number: 293
• Parties: STATE v. SMITH.
• Court: North Carolina Supreme Court

52 S.E.2d 348

230 N.C. 198

STATE v. SMITH.

No. 293

Supreme Court of North Carolina

March 30, 1949

The defendant was indicted for perjury. The bill charged that in the trial in the County Recorder's Court of a criminal action against the defendant he falsely swore that he had not had sexual intercourse with one Virginia Hamby, had not taken her to ride except to her work on two occasions, had only visited her to buy whisky, had not hugged or kissed her, had not driven her to another county to pick cherries. It was alleged the defendant well knew these statements to be false.

On the trial on the bill the State offered evidence tending to show that defendant had testified under oath in the Recorder's Court 'when charged with being the father of Virginia Hamby's baby,' that he had only taken her to ride twice to her work, that he had been to her house only a few times to get whisky, had not hugged or kissed her, had not given her presents; that he had not had sexual intercourse with her, and was not the father of her child.

The State also offered evidence that defendant had taken her to ride a number of times, and was a frequent visitor at her home; that on one occasion at Christmas she was seen sitting on his lap; that she and defendant were seen on one occasion together at a picture show; that defendant had directed a dealer where to deliver some wood and coal which she paid for. There was no competent evidence he had given her any presents. True, there was some evidence as to a locket which a witness said Virginia Hamby (who was not a witness) had told her was paid for by defendant, but this was admitted over defendant's objection and was apparently hearsay. There was no evidence that defendant had driven her anywhere to pick cherries. There was some evidence that Virginia Hamby had given birth to a baby, but there was no evidence when, or that defendant was the father. Virginia Hamby did not testify. There was no evidence that defendant had had sexual relations with her, other than the circumstances above recited. The warrant, if any, under which he was tried in Recorder's Court does not appear in the record.

There was verdict of guilty, and from judgment imposing sentence of imprisonment in State's Prison defendant appealed.

Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for State.

W H. Strickland and Max C. Wilson, both of Lenoir, for defendant, appellant.

DEVIN Justice.

The defendant assigns error in the rulings of the court below in several particulars to which exceptions were noted, but the question chiefly debated here was whether the State's evidence was sufficient to carry the case to the jury on the charge of wilful and corrupt perjury. It was contended that the proof offered by the State, as shown by the record in this case, only tended to show the falsity of statements made by the defendant on the previous hearing as to matters which were not material to the issue then being tried, and hence was insufficient to support a conviction for perjury.

The evidence according to the summary hereinbefore stated discloses that the defendant was 'charged with being the father of Virginia Hamby's baby. ' This does not indicate a criminal offense, but if the warrant under which he was tried in the Recorder's Court charged violation of G.S. s 49-2, the issue there was whether the defendant was the father of the child, and if so whether he had wilfully failed to support his illegitimate offspring. On the trial for perjury there was no evidence that he was the father of the child. There was failure of proof that he had sworn falsely as to that determinative issue. Virginia Hamby, the mother, did not go upon the witness stand to disprove his statement that he was not the father of her child and had not had sexual relations with her. If in his testimony in the Recorder's Court the defendant minimized unduly the number of his rides or his visits, the mere number was not of prime importance. These were not matters so connected with the issue being tried as to disprove defendant's testimony. In the absence of evidence that he was the father of Virginia Hamby's child, and had wilfully failed to support such child, or of evidence of sexual intercourse with her at such time as to engender the inference of his paternity, other than circumstances of association with her only partly admitted, defendant's statements previously made, if not in accord in all respects with the testimony now offered, should not...