State v. Caffey, 6 N.C. 320, 2 Mur. 320 (1818)

July 1818 · Supreme Court of North Carolina
6 N.C. 320, 2 Mur. 320
The State, v. Jonathan Caffey

The State, v. Jonathan Caffey.

From Iredell.

indictment. An indictment for perjury in swearing to an affidavit, charged that the affidavit was in substance and to the effect following” — The assignments was that defendant swore he did not know a writ was returned ag-ainst hint in the above suit — the affidavit when produced had the word case instead of suit: — the variance is immaterial, the indictment does not profess to give the tenor.

The Defendant was indicted for Perjury, alleged to have been committed in swearing to an affidavit. The assignment of the perjury was, that the Defendant swore that he did not know ‘that a writ was returned against Mm in the above suit. The evidence offered in support of the assignment, was an affidavit, in which the Defendant had sworn, that he did not know that a writ was returned against him in the above case. The indictment charged that the affidavit was “ in substance and to the effect following, &c. Upon the trial, the Defendant’s counsel objected to the giving of the affidavit in evidence, on the ground that it was variant in its language from the one recited in the indictment. The objection was overruled, and the Defendant convicted. A rule for a new trial was obtained, and sent to this Court.

*321Seaweix, Judge,

delivered the opinion of the Court:

A new trial is moved for, on the ground that the aífi-davit was improperly admitted •, and it has been insisted, that inasmuch as the assignment and affidavit differ in a word, the assignment was not supported by the evidence ; and the case from Cowper (a) has been relied on, where Lord Mansfield says, “ the true distinction is, that when the word misrecitcd is sensible, then it is fatal.” This case only implies where the tenor is undertaken to be recited j in which, if the recital be variant in a word or letter so as thereby to create a different word, it is fatal. In the present case, the indictment only pretends to set forth the substance and effect of the affidavit ; and ail the authorities shew that whenever a statement of the substance and effect is sufficient in the prececdings, evidence of the substance and effect will also suffice. Lord Holt, in the case of the Queen vs. Dr. Drake, (b) by way of illustration says, that when only the sense and meaning are professed to be set out, it may be done by translating it into Latin. The evidence was properly admitted, and the rule for a new trial must be discharged.