Opinion
June Term, 1806.
Perjury may be committed in answering a question that has no relation to the issue, if asked with a design to impair the credit of the witness as to those parts of the case which are material and important to the issue, particularly if the witness be cautioned as to his answer.
THE defendant was indicted for perjury, and found guilty, subject to the opinion of the court on the following case:
From Hillsboro.
The defendant prosecuted one Zephariah Tate and others for a riot. On the trial of the indictment the defendant was examined as a witness, and was asked whether he did not present a gun at Zephariah Tate, or threaten to shoot him. He was cautioned by the counsel who propounded this question, (125) to take care how he answered it. He answered that he did not present a gun at said Tate or threaten to shoot him. He was then cautioned to take care how he answered this question, and the question was propounded to him a second time. The defendant again answered in the negative. The answer given by defendant to this question was the perjury assigned in the indictment. The question and answer had no immediate relation to the question of guilty or not guilty on the indictment for the riot; but the question was asked in order to lay a foundation for the introduction of witnesses on the part of the defendants, proving the answer to be false, and thereby impairing the credit which his testimony might have with the jury on other facts which were material and important to the issue. The question for the consideration of the court was whether the oath taken as aforesaid could be considered so material to the issue as to amount to the crime of perjury.
It cannot be doubted that if the oath be wholly foreign to the issue, or altogether immaterial and by no means pertinent to the question, not tending to aggravate or extenuate the damages or fine, nor likely to induce the jury to give a readier credit or to lessen the credit to the substantial part of the evidence, it cannot amount to the crime of perjury. Hawkins Pleas of the Crown, 323, has put several instances to illustrate this position. "As where a witness being asked by a judge whether A brought a certain number of sheep from one town to another altogether. Answered that he did so; whereas he had brought part at one time and part at another. Yet such witness was not guilty of perjury, because the substance of the question was whether A did bring them at all or not, and the manner of bringing them was only a circumstance." He cites many other instances, and adds: "But, perhaps, in all these cases it ought to be intended that the question was put in such manner (126) that the witness might apprehend that the sole design of putting it was to be informed of the substantial part, which induced him through inadvertency to take no notice of the circumstantial part, and give a general answer to the substantial; for, otherwise, if it appear plainly that the scope of the question was to sift him as to his knowledge of the substance, by examining him strictly concerning the circumstances, which afterwards appear to be false, surely he cannot but be guilty of perjury, inasmuch as nothing can be more apt to incline a jury to give credit to the substantial part of a man's evidence than his proving to have an exact and particular knowledge of all the circumstances relating to it.
If in the doctrine here laid down the author be correct, it would seem that the oath taken by the defendant does amount to perjury. For the question was asked for the purpose of sifting the defendant's knowledge of the substance, by examining him strictly as to circumstances, and in such a manner as to inform the defendant of this purpose, and with a design to lessen the effect of his testimony on those parts of the case which were material and important; and although it related nothing to the merits of the cause then on trial, yet, inasmuch as his giving such an answer in a thing immaterial had such a direct tendency to lessen his credit concerning what was most material and consequently beneficial to the defense of the then defendant, equally criminal in its own nature and equally tending to abuse the administration of justice as if the matter sworn had been the very point in issue, there does not seem any good reason why it should not be equally punishable. This case is precisely similar to the case of S. v. Doty, determined some years go in Salisbury Superior Court. One Harmon preferred an indictment against Doty for petit larceny; to support which there was but one witness, named Patterson. To render Patterson infamous and thereby disqualify him from giving testimony, Doty preferred an indictment against him for larceny. Pending these prosecutions, Doty offered (127) Patterson a horse, saddle and bridle to abscond and not appear as a witness against him; which offer was rejected by Patterson. On the trial of the indictment, S. v. Patterson, Doty was asked if he had not made this offer to Patterson; he answered positively that he had not. For this oath Doty was indicted, tried, convicted and punished, although the same exception was taken and solemnly argued by counsel which is taken in the present case. The question had no relation to the larceny, but was asked with the express design of impairing the credit of Doty's testimony on those parts of the case which were material and important. The Court believing the decision in Doty's case to be correct, are of opinion that judgment should be entered for the State.
Cited: S. v. Cline, 150 N.C. 857; S. v. Lewis, 93 N.C. 584.
Doubted: Studdard v. Linville, 10 N.C. 479.