State v. Shaw, 117 N.C. 764 (1895)

Sept. 1895 · Supreme Court of North Carolina

117 N.C. 764

STATE v. JAMES SHAW.

Indictment for Perjury — Indictment, Sufficiency of.

An indictment for perjury which omits the word “feloniously1' as characterizing the charge is fatally defective under Ch. 205, Acts of 1891, which makes all criminal offences, punishable by death or imprisonment in the State penitentiary, felonies.

INDICTMENT for perjury, tried before Robinson, J., and a jury, at July Term, 1895, of Columbus Superior Court. The defendant was convicted and moved in arrest of judgment because the bill did not charge the offence to have been feloniously committed. The indictment was as follows : “The jurors for the State upon their oaths present that James Shaw, of Columbus county, did unlawfully commit perjury upon the trial of an action in justice’s court before A. E. Toon, a justice of the peace in Columbus county and Whiteville township, wherein the State of North Carolina was plaintiff,, and-James Shaw and John Eield and others were defendants, by falsely asserting on oath that he was not present at, and did not attempt to assist, and did not assist in, an attempt to rescue B. L. Jones from the jail of Columbus county, on or about the 3rd day of June, 1894, for which offence the said defendant stood then charged, knowing the said statement or statements'to be false, or being ignorant whether or not said statements were true ; contrary to the form of the statute,” etc.

The motion in arrest of judgment was sustained and the State appealed.

The Attorney General, for the State.

Messrs. Lewis <& Burhhead, for defendant.

Avery, J. :

Since all criminal offences punishable with death or imprisonment in a State prison were by statute (Laws 1891, Oh. 205) declared Monies, indictments wherein there has been a failure to use the word “feloniously” as characterizing the charge in the latter class of eases, have been declared fatally defective. State v. Wilson, 116 N. C., 979; State v. Skidmore, 109 N. C., 795.

Whatever force there might be in the suggestion of the Attorney General that Section 1189 of The Gode renders it unnecessary to embody, in the charge what it is not material to prove, if it had been made before the latter statute had been so often construed, it is now our duty to adhere to our decisions.

There was no error in sustaining the motion in arrest and the judgment of the court below is affirmed.

Affirmed.