Summary
In S. v. Molier, 12 N.C. 263, it was said, the jurisdiction of the magistrate was not to be doubted, (79) and in that case there was a conviction for perjury upon precisely such a proceeding as that in this case.
Summary of this case from Colbert v. PiercyOpinion
July Term, 1827.
From Buncombe.
1. Although the testimony of two witnesses is necessary to convict of perjury, yet the direct oath of one witness, and proof of declaration of the prisoner inconsistent with the oath in which perjury is assigned, is sufficient.
2. Perjury is properly assigned in an oath taken before a court of competent jurisdiction, although the witness was erroneously sworn.
3. False spelling which does not alter the meaning of the word misspelt, is no ground for arresting the judgment.
THE defendant was indicted for perjury alleged to have been committed on a trial before a justice of the peace, in which the prisoner was the plaintiff and one McGhee the defendant, for "a debt of one dollar due by account." Upon the trial the prisoner was sworn as a witness for himself, and proved an account of one sifter or sieve, swearing that it "was just and true." The prisoner was then asked by the justice whether he had not given the sifter to McGhee, to which he replied that the had not given it, but that McGhee then owed him for it. The prisoner was not asked whether the matter in dispute was a book account, nor whether he could prove the delivery of the sifter by other means than his own book and oath. Neither was the book-debt oath exhibited to hi, but he was (264) admitted to prove the sale and delivery, without any objections by McGhee or the justice. On the trial of the indictment, before his Honor, Judge Ruffin, the falsity of the oath was proved by McGhee, who swore that the prisoner had given him the sifter, and by four other witnesses, two of whom swore that a short time before the delivery of it they had heard the prisoner say that he intended to give it to McGhee, and the other two swore that a short time thereafter they had heard him say that he had so given it.
Gaston for the appellant.
Attorney-General for the State.
The counsel for the prisoner contended that he could not be convicted, first, because the falsity of the oath was proved by one witness only; that other witnesses proving declarations of the prisoner, which, although inconsistent with the oath, might be false. Second, that if the oath was false, it was not perjury, as it was taken extrajudicially — a justice of the peace not having jurisdiction to swear the declaration prescribed by the act "ascertaining the method of proving book debts." Both of these objections were overruled by the presiding judge, who instructed the jury that if they were satisfied by the oaths of two witnesses that the prisoner had deliberately, knowingly, and corruptly taken a false oath, they ought to find him guilty; and that the rule of law requiring two witnesses to convict was well satisfied by the proof of the declarations made by the prisoner, provided they believed the witnesses who swore to them.
The jury found the prisoner guilty, and his counsel moved first for a new trial, on the ground of misdirection, and, second, in arrest of judgment, because the word sieve was spelt sive. Both of which being overruled and judgment pronounced for the State, the prisoner appealed.
It is a well-established rule of evidence that the testimony of a single witness is insufficient to warrant a conviction on a charge for perjury. But it does not (265) appear to be anywhere laid down that two witnesses are necessary to disprove directly the fact sworn to by the defendant, although in addition to the testimony of a single witness some other independent evidence ought to be adduced. To convict a man of perjury there must be strong and clear evidence, and more numerous than the evidence given for the defendant, is rational rule laid down in 10 Mod., which seems to have been followed ever since; for if you weigh the oath of one man against another, the presumption always made in favor of innocence shall turn the scale in favor of the accused. Her the falsity of the oath was directly proved by one witness, who swore that the prisoner gave him the sifter; and the evidence given by the other four witnesses appears to me to be of that independent and supplemental character which will satisfy the rule of law. To two of these witnesses the defendant told that he intended to give the sifter to McGhee, and to the two other he said, a short time afterwards, that he had given it. This is undoubtedly strong evidence of the falsity of the oath, and, when added to McGhee's evidence, removes the dilemma of weighing his oath against the prisoner's by creating a decided preponderance against it. It is such evidence as was properly admissible on the trial of the warrant, according to Kitchen v. Tyson, 7 N.C. 314, and if admitted, must have destroyed the credibility of the prisoner. I cannot perceive why it is not equally strong, upon the trial of the indictment, in addition to McGhee's evidence, to show the falsity of the oath.
As to the other reason for a new trial, it presents the inquiry, whether the oath was judicially administered. That the magistrate had jurisdiction of the matter, being a book account, is not to be doubted; and any irregularity in the (266) mode of administering the oath cannot oust that jurisdiction. The record sent up authorizes the belief that the defendant McGhee was present at the trial of the warrant, and as he did not require the preliminary questions to be asked of the prisoner, it must be considered as a waiver of them, the law being introduced for his benefit. But considered in any point of view, the proceedings at the utmost can only be considered as erroneous, and not void; whence it will follow that perjury may be assigned tin the oath so taken while the proceeding stands unreversed. 1 Vent., 181; 1 Sid., 148; Raym., 74. Indeed, a respectable writer on the criminal law makes a question whether a perjury in a court whose proceedings are afterwards reversed for error, may not still be punished as perjury, notwithstanding such reversal. 1 Hawk P. C., 432.
It appears to me difficult to distinguish this case from one where a witness is improperly admitted by the court and the witness swears falsely. Can it be doubted that he would be indictable for perjury, provided the court has jurisdiction of the matter?
With respect to the motion in arrest of judgment on account of leaving out the letter e in the word sieve, I think it is not to be sustained. I know of no authority for arresting judgment for false spelling in an indictment, where the word misspelt is of the same sound, and does not constitute a different word. It was impossible that the jury could be misled by misspelt is of the same sound, and does not constitute a different word. It was impossible that the jury could be misled by mistaking the word so spelt for nay other in the English language, except the word intended, viz., a bolter or search.
In King v. Beach, Cowp., 230, Lord Mansfield said that the Court had looked into all the cases on the subject, and that the true distinction is, even in the case of a variance, that where the omission or addition of a letter does not change the (267) word, so as to make it another word, it is not material. Thus, if the misrecited word is in itself a word, though not intelligible with the context, as air for heir, there the variance, according to the decisions, is fatal; but not if the mutilated word does not make any other word. I Doug., 194, in notis. I am consequently of opinion that the conviction was right.
PER CURIAM. Judgment affirmed.
Cited: Colbert v. Piercy, 25 N.C. 78.