Opinion
(July Term, 1817.)
A caption to an indictment is only necessary where the court acts under a special commission; and the mistake in the caption of an indictment found in a court which sits by the authority of a public law will not vitiate the indictment.
THE defendant was indicted for perjury, and demurred to the indictment "because it appears to have been found at October term of Wayne court, whereas there is no such term of said court recognized by the law; wherefore," etc.
The case was submitted.
The design of a caption to a bill of indictment is that it may appear the indictment was taken by competent authority; and this can only be necessary to be spread upon the proceedings when the court acts under special commission; for in all cases where the court sits by the authority of a public law, everybody must take notice of it, and judges judicially know it; for Superior Courts being holden by law, it no longer follows that it is necessary specially to set forth the power of the court. When the whole records are referred to in this case (and they form part of the case), it appears that the indictment was taken by the jurors for the State at a Superior Court holden, by authority of law, for the county of Wayne, before Samuel Lowrie, one of the judges of the Superior Court. The caption not being any part of the charge, but something written upon the top of the bill of indictment, has (597) no influence over that which the jury have found.
The point in this cause decided in S. v. Jeffreys, 1 N.C. in relation to indictments in the county court. The act of Assembly of 1811, ch. 6, put indictments in both courts on the same footing, as respects form. But I should think, for the reasons given by my brother SEAWELL, that, independent of the act, the indictment would be good. It is only necessary that it should appear that the bill was found in a competent court; it is immaterial at what time it may be.
The rest of the Court concurred.
Demurrer overruled.
NOTE. — See S. v. Sutton, 5 N.C. 281.
Cited: S. v. Arnold, 107 N.C. 864; S. v. Francis, 157 N.C. 614.