State v. Avera, 4 N.C. 237, 1 Taylor 237 (1817)

Jan. 1817 · Supreme Court of North Carolina

4 N.C. 237, 1 Taylor 237

STATE against AVERA.

THE Defendant was indicted for perjury r J J before the Grand Jury of Johnston Superior Court, while they had under examination an indictment preferred against S. Norsworthy for forgery. This bill charged Nors-worthy with fotging 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 , ,. , ■ . .,,1,1. ,- , be did not execute the said deed, bat that it was forged by Norsworthy, and wilfully uttered by him. The assignment of perjury was in the falsehood of this oath, the dictmentaverring that Avera did execute and deliver the ■deed.

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 Norswarthy with having foiged or altered it.

Ifámanis indicted for ‘n, ,. sweanng-that hedidnotar-taiif leedj" “N the jury that he is , inS ⅛ sigua-ture,tlieiudgment must be ’.ior executed. Where -rom the fimlmg* of me¡j not be presu-fUíity.

Nash and Badger for the Defendant,

stated several reasons in arrest of judgment; but the two following were finally relied upon, and argued with much force and ingenuity.

1. That the indictment concludes against the peace and dignity of the said State” ; and net “ against the peace and dignity of the State,” as prescribed by the constitution»

2. Because the verdict of the Jury is equivalent to a Verdict of acquittal, and should have been so entered up.

Seawell, J.

delivered the opinion of the Court.

The charge in this indictment against the Defendant is, that on a former bill before the Grand Jury he swore that he did not execute” a certain deed, but that it wt,s forged by Norswarthy. 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'' Nqjv 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.