(July Term, 1817.)
If a man is indicted for perjury in swearing that he did not execute a certain deed, and the jury find specially that he is guilty of perjury in denying his signature, the judgment must be arrested; for a deed may be executed without actual signing; and when from the finding of the jury the defendant may be innocent, he will not be presumed guilty.
THE defendant was indicted for perjury committed before the grand jury of JOHNSTON, while they had under examination an indictment preferred against S. Norsworthy for forgery. This bill charged Norsworthy with forging a deed under the hand and seal of Avera, and for uttering and publishing the same, knowing it to be forged. Avera swore before the grand jury that he did not execute the said deed, but that it was forged by Norsworthy, and willfully uttered by him. The assignment of perjury was in the falsehood of his oath, the indictment averring that Avera did execute and deliver the deed.
Nash and Badger for defendant.
The jury found specially that Avera was guilty of the perjury assigned in denying the signature of the deed, and not guilty of that assigned in charging Norsworthy with having forged or altered it.
The charge in this indictment against the (670) defendant is that on a former bill before the grand jury he swore "that he did not execute" a certain deed, but that it was forged by Norsworthy. The jury find him not guilty of the perjury so far as relates to the charge that he swore Norsworthy forged the deed, but guilty in " denying his signature." Now, the defendant might have executed the deed, and still the fact be that he never actually signed it; as in a case where one person signs another's name by direction, and a sealing and delivery takes place by the party whose name is so written. In a case, therefore, quite supposable, wherein the defendant may be innocent, it is certainly against all authority to presume him guilty. There must, therefore, be judgment for the defendant.
NOTE. — See S. v. Bright, ante, 437; S. v. Arrington, 7 N.C. 571.