Opinion
August Term, 1853.
1. An indictment for perjury must set out the substance and effect of the testimony, in which the perjury is assigned.
2. Where an indictment charged the defendant with having sworn that A. purchased a gun of B., and his testimony as proved on the trial was that B., in a conversation with A., asked him if he had brought home his gun, to which A. replied "he had forgot it," and said, "I will keep the gun and allow $15 for it on what you owe me," to which B. replied, "Enough said": Held, that the proof did not support the charge; for B's answer did not necessarily import an assent to the proposal of A., but was susceptible, under the circumstances, of another interpretation.
(The case of S. v. Bradley, 2 N.C. 403, cited and approved.)
THE defendant was tried before his Honor, Dick, J., at Fall Term, 1851, of MACON Superior Court of Law, for the crime of perjury. The indictment charged that in a suit between one McKee and one Hodgins, tried before his Honor, William H. Battle, holding the Superior Court of Law for said county of Macon, at its Spring Term, 1851, the defendant was examined as a witness on behalf of said Hodgins, and that on the trial of said issue, it became a material question whether one Martin Groves had theretofore purchased from the said McKee a certain rifle gun, referred to in the pleadings in said suit; and that the defendant did then and there "depose and swear, among other (403) things, in substance and to the effect following, that is to say, that the — said Martin Groves had theretofore purchased from the said Eli McKee a certain rifle gun, referred to in the pleading in the suit aforesaid; whereas, in truth and in fact, the said Martin Groves had not theretofore purchased from the said Eli McKee a certain rifle gun, referred to in the pleading," etc. And so the jurors, etc.
Attorney-General for the State.
No counsel for defendant in this Court.
On the trial of the indictment, one Thomas J. Roane was called as a witness for the State, and he testified that he was present at the trial of the case in the Superior Court for Macon County, in which Eli McKee was plaintiff and Lewis Hodgins was defendant. That said suit was an action of trover to recover the value of a rifle gun; that said Hodgins claimed title to the gun in controversy under one Martin Groves, a son of the defendant; that on the trial of said suit Hodgins examined the present defendant as a witness, who swore that he went in company "with Martin Groves to the house of the said Eli McKee, when the said McKee asked the said Martin Groves if he had brought him his little gun? to which the said Martin replied: `No; I forgot it.' Martin then said to McKee: `bought your large gun at $12; you promised to get it for me by March court; I have come three times after it, and have not got it; I will keep the little gun in lieu of the big gun, and will allow you $15 of what you owe me, for it,' to which Eli McKee replied, `Enough said.'"
Eli McKee was also examined for the State, and testified substantially as above; and he further testified that the whole statement made by the defendant as recited by the witness Roane, was entirely false. One Noah Wines was also examined, who gave the same account as the other two witnesses, of what the defendant swore on the said trial; and this witness further stated that the defendant, after he had replied to McKee, "enough said," as above stated, in reply to a question asked by McKee's counsel on cross-examination, stated that after McKee had said the words, "enough said," he did request Martin to bring home his little gun. Mrs. McKee was sworn, and testified that she was present when the defendant and his son Martin were at her husband's house; (404) that she heard all the conversation that took place between her husband and the defendant and his son Martin, and that no such conversation took place in relation to the little gun, as was deposed to by the defendant; but, on the contrary, the last thing her husband said to Martin was a request to bring home his little gun, which Martin promised to do.
The defendant's counsel insisted that there was a fatal variance between the allegation of the bill and the proof, particularly if the testimony of Wines was correct. His Honor was of opinion that if the testimony of the State's witnesses were true there was no variance, and he instructed the jury accordingly. There was a verdict of guilty, and judgment having been rendered thereon, the defendant appealed to the Supreme Court.
In an indictment for perjury, alleged to have been committed in giving parol testimony, it is certainly sufficient to state the substance and effect of what the defendant swore. 2 Russ. on Crimes, 538. And it follows, as a necessary consequence, that the proof will be sufficient, if it establish the substance and effect of the charge. Ibid., 546; Roscoe Crim. Ev., 814. This the defendant, by his objection, impliedly admits; but he contends that the testimony given as to what he swore to on the trial in which the perjury is assigned to have been committed, varies substantially from that which is set forth in the bill of indictment. The objection is, in our opinion, fully sustained by the facts stated in the bill of exceptions, and the judge ought so to have instructed the jury upon the trial. The charge is, that the defendant swore in positive and direct terms that Martin Groves had purchased a rifle gun from Eli McKee. The testimony of Roane and some other witnesses is, that he swore that when Martin Groves offered to allow McKee $15 for his little gun (the rifle) to be credited on account, which the latter owed him, McKee simply replied, "Enough said." The question is, was this equivalent to an express statement that McKee had sold him the rifle gun? It may be that such was his meaning, and that a jury would be justified in drawing such an inference; (405) but it is clearly susceptible of another interpretation — to wit, that McKee refused Groves' offer to purchase his rifle, and would have nothing further to say about it. And this latter interpretation is rendered the more probable by the testimony of Wines, who states that the defendant said, in addition to what is deposed to by the other witnesses, that McKee, after saying, "enough said," requested Groves to bring home his little gun — which is certainly not very consistent with the idea of a sale. Surely such testimony as this cannot be considered as establishing, in substance and effect, the allegation contained in the bill of indictment, of what the defendant swore. See S. v. Bradley, 2 N.C. 403 and 463; and also, Rex v. Leefe, 2 Camp. Rep., 134, and the authorities referred to in the note to the latter case. The defendant is entitled to a venire de novo.
PER CURIAM. Judgment reversed, and a venire de novo awarded.