State v. Davis, 84 N.C. 787 (1881)

Jan. 1881 · Supreme Court of North Carolina

84 N.C. 787

STATE v. JOHN WEBB DAVIS.

Perjury — Insufficiency of Indictment.

An indictment for perjury which does not aver that the false -oath was taken wilfully and corruptly is defective. These terms must bo applied to the act of swearing1 to express the wicked purpose with whieh such oath is taken.

{State v. Garland, 3 Dev., 114, cited and approved.)

INDICTMENT for perjury tried at Spring Term, 1880, of Halifax Superior Court, before Gndgei\ j.

The indictment is substantially as follows : The jurors, <tfec., present that defendant, <&c., on the 15th day of September, 1879, in said county, before William H. Shields, J. P., deputy assessor to John B. Neal, assessor for Caledonia township, Halifax count}', duly appointed by the board of county commissioners of said county, on the 21st day of April, 1879, to list and assess all the lands and personal property of said township for the year 1879 ; whereas upon the examination of said John Webb Davis this day taken before William H. Shields, J. P., deputy assessor to John B-. Neál, assessor for Caledonia township, &c., the said defendant listed his property for taxation, to wit, twenty-five acres-of land, one cow, no hogs, one horse, valued at twenty-five-dollars, and the defendant was then and there- sworn upon the Holy Evangelist, &c., by W. H. Shields, J. P., deputy-assessor to John B. Neal, assessor, &c., then and' there examined upon his oath by said Shields; and he, the said1 defendant, declared upon his oath, to wit: I, John Webb-Davis, do solemnly swear that the list furnished by me contains a true and accurate list of property I am required to list for taxation, and that the value fixed thereon by me is-a fair valuation of the same according to my best knowledge,, information and belief,sohelpmeGod. (Signed by defendant,. and “sworn to and subscribed before me, this 17th day of June, 1879. John B. Neal, assessor, pr. W. PI. Shields.”} And the jurors, &c., do say that defendant when he declared upon his oath before Shields, J. P., that the list fuinished by him contained a true and accurate list of his property which by law he was required to list for taxation, and the value fixed thereon by him was a fair valuation of the same, which was not true; that he did unlawfully and wilfully ■commit wilful and corrupt perjury, contrary, &e.

The jury rendered a verdict of guilty. Motion in arrest ■overruled, and judgment pronounced, from which the defendant appealed.

Attorney General, for the State.

Messrs. Meade, Busbee & Busbee, for defendant.

Asi-ie, J.

The indictment is radically defective in many particulars, and scarcely contains a single requisite of a ■good bill of indictment for perjury. It shows the danger of a draughtsman’s undertaking the task of simplifying and not adhering to established precedents.

It is unnecessary to notice more than one of the many defects in the indictment. It is defective in that it does not aver that the defendant wilfully and corruptly took the false ■oath. There is nothing in the indictment to exclude the ■idea of the false oath having been taken by inadvertence or •mistake. The epithets of wilful and corrupt are indispensable in an indictment for perjury to express the wicked purpose with which the false oath was taken. In the case of State v. Carland, 3 Dev., 114, which was an indictment for perjury, the judgment was arrested for the omission of these -very words to express the evil intent with which the false -oath'was taken. Chief Justice Ruffin, who delivered the 'opinion in that case, says, “ Whatever evil intent maybe Alleged in the indictment as moving the defendant to take the false oath, the very taking of it roust have been stated to have been done deliberately and with a wicked purpose, at that moment existing. This has been expressed by applying the terms, wilful and corrupt, to the act of swearing. Cox’s ease established that one of these might be supplied by the word maliciously. That has been doubted and never followed, though I suppose it might be in a case precisely in point. But in -no instance hath the omission of both been allowed. And in a very late ease in the King’s Bench , in 1826, (Rex v. Stephens) this very point came directly before the court, when the indictment was held bad, in arrest of judgment. This is of more authority because the statute of 23 Geo. II., ch. 11, provides in that country for simplifying indictments, as our own does here ;” and our act of 1842 (Bat Rey., ch. 32, § 62) is a literal eopy of the act of Geo, II.

There is error. This will be certified to the superior <eourt of Halifax county that the judgment in this case may, be arrested.

Per Curiam, Error,