State v. Molier, 12 N.C. 263, 1 Dev. 263 (1827)

June 1827 · Supreme Court of North Carolina

12 N.C. 263, 1 Dev. 263

The State Robert H. Molier,

From Buncombe.

Although the testimony of two witnesses is necessary to convict of perjury, yet the direct oath of one witness, and proof of declarations of the prisoner inconsistent with the oath in which perjury is assigned, is sufficient.

Perjury is properly assigned,in an oath taken before a Court of competent jurisdiction, although the witness was erroneously sworn,

Raise 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 McGehee the Defendant, for “a debt of one dollar due by account.” Upon the trial, the prisoner was sworn as a witness for himseif, and proved an account for 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 McGehee, to which he replied that he had not given it, but that McGehee 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 hook and oath. Neither was the book debt oath exhibi-bed to him, but he was admitted to prove the sale and delivery, without any objections by McGehee, or the Justice. On the trial of the indictment, before his honor Judge Ruppjn, the falsity of the oath was proved by McGehee, who swore that the prisoner had given him the sifter, and by four other witnesses, two of whom sw ore that a short time before the delivery of it, they had heard the prisoner say that he intended to give it to McGehee, and the other two swore, that a short time thereafter, they had heard him say that he had so given it.

The Counsel for the prisoner contended, that he could not be convictedfirst, because the falsity of the oath was proved by one witness only •, the other witnesses proving declarations of the prisoner, which although inconsistent with his 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 a party to prove his own account, unless he made 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, tiiat 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.

The case was submitted without argument, by Gaston for the Appellant, and by the Attorney-General for the State.

Tayuor, Chief-Justice.

It is a well-eslabiislied 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 appear to be any where laid down that two witnesses are necessary to disprove directly the fact sworn to by tiie Defendant, although in addition to the testimony ofa 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 a 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. Here 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 McGehee, and to the two others he said, a short time afterwards, that he had given it. This is undoubtedly strong evidence of the falsify of the oath, and when added to McGehee’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 the case of Kitchen v. Tyson (3 Mur. 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 McGehee’s evidence, to show the falsity of the oath.

As to the other reason for a newr trial, it presents the enquiry, 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 mode of administering the oath, cannot oust tiiat jurisdiction. The record sent up authorises the belief, that the Defendant McGehee 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 proceeding at the utmost, can only be considered as erroneous, and not void ; whence it will follow, that perjury may be assigned in 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 whoso proceedings are afterwards reversed for error, may not still be punished as perjury, notwithstand-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 lie would be indictable for perjury, provided the Court had 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 mistaking the word so spelt for any other in the English Language, except the word intended, viz. a bolter or search.

In the case of the King v. Beach, (Cowp. 230), Lori 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 word, so as to make it another word, it is not material. Tims, if the misre-cl ted 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 — (1 Doug. 194, in notis). I am consequently of opinion, that the conviction was right.

Pee Curiam. — Judgment affirmed.