State v. . Mumford , 12 N.C. 519 ( 1828 )

"The jurors, etc., that heretofore, etc., in, etc., K. M., Late, etc., came before Hugh McKenzie, Esq., then and yet being one of the justices, etc., and then and there upon her oath, charged one Alfred Noble before the said H. M., the justice, etc., with having assaulted, stricken, and bruised one Henry Mumford. And the jurors aforesaid, etc., do further present, that upon the examination of the said K. M. before, etc., upon her oath aforesaid, touching and concerning the alleged assault by the said A. N. in and upon the said Henry Mumford, certain (520) questions then and there became and were material, that is to say, whether A. N. did strike her husband, Henry Mumford, with a stick across the back at the last time he and V. P. wrestled, and whether the blow across the back with a stick was given immediately as they fell. And the jurors, etc., do further present that the said K. M. wickedly, devising, and intending unjustly to aggrieve the said A. N. and procure him to be imprisoned, and kept in prison for a long space of time, on, etc., at etc., before the said H. M. then being, etc., she the said K. M. did then and there take her corporal oath, and was sworn upon the Holy Gospel of God before the said H. M., justice, etc., he the said H. M. then and there having sufficient and competent power and authority to administer an oath to the said K. M. in that behalf, and that the said K. M., not having, etc., but being moved, etc., then and there before the said H. M., justice, etc., upon her oath, etc., falsely, etc., did depose, say, swear, give and make information, among other things, in substance and to the effect following: that is to say, that N. (meaning the said A. N.) did strike her husband, Henry Mumford, with a stick across the back, at the last time he (meaning the said Henry Mumford) and V. P. (meaning a certain V. P.) wrestled, and that the blow (meaning the blow with the stick across the back of the said Henry Mumford) was given immediately as they (meaning the said Henry Mumford and the said (V. P.) fell, whereas in truth and in fact the said A. N. did not strike her husband, Henry Mumford, with a stick across the back, at the last time he the said Henry Mumford and V. P. wrestled, and whereas in truth and in fact the blow was not given as they (the said Henry Mumford and the said V. P.) fell. And so the jurors aforesaid, etc., etc."

After a verdict for the State, the counsel for the prisoner moved in arrest of judgment, contending that the assignment of perjury was not sufficiently certain, and in effect was nothing more than a negative pregnant. His Honor, the presiding judge, being of that opinion, arrested the judgment, whereupon Mr. Solicitor Troy appealed. The objection taken in arrest of judgment is founded on the assumption that the only material inquiry before the justice was whether Noble had assaulted Mumford or not, on the day specified, and that whether he struck him on the back or not, at the last wrestle, was irrelevant and unconnected with that question; that the assignment of perjury in the circumstances is consistent with the belief that the defendant might have sworn truly as to the principal fact, viz., the assault. This presents two questions: whether the materiality of the inquiry is sufficiently stated in the indictment, and whether the assignment of perjury is properly and distinctly made.

It is laid down as a rule, which I find nowhere controverted, that it should appear on the face of the indictment that the oath taken was material to the question depending, not by setting forth the circumstances which render it so, in describing the proceedings of a former trial, but by a general allegation that the particular question became material. In Aylett's case, a leading one on this subject, it is stated that it became a material question on the hearing of the complaint, and the hearing of that is stated in general terms. 1 Term, 66. In King v. Dowling the question was much debated. It is there stated that the question became material on the trial in the same general terms that it is stated here; and the trial is referred to in this manner, that "at such a court J. R. was in due form of law tried upon a certain indictment then and there depending against him for murder." Dowling was a witness against J. R. on that trial, and the perjury was assigned in his swearing that "he had never said he would be revenged of the said J. R. and would work his ruin." On this part of the case it was argued on behalf of Dowling that all those facts ought to be stated in the proceedings against J. R. which were necessary to show that the jurisdiction was competent; that there was something to be tried: the materiality of the question to that (522) point, and falsity of the oath. This objection is thus directly met by Lord Kenyon: "But it has been objected that it was necessary to set forth in the indictment so much of the proceedings of the former trial as will show the materiality of the question on which the perjury is assigned. If it were necessary, and if the question arose on the credit due to the witness, the whole of the evidence given before must be set forth; but that has never been held to be necessary, it always having been adjudged to be sufficient to allege generally that the particular question became a material question. But here it is averred that the question on which the perjury was assigned was a material question, and the jury have found it so by the verdict." 5 Term, 319.

In this indictment the warrant and examination before the magistrate are stated, and the general allegation of the materiality of the question is in conformity with the best forms, and, considered in reference to the act on this subject, Rev., ch. 383, appears to me unexceptionable.

The matter sworn to by the defendant is contradicted in the assignment of perjury, specially and particularly, and in the words in which it was sworn. A general averment upon the whole matter, that the defendant falsely swore, is not sufficient; it should be specific and distinct, to the end that the defendant may have notice of what he is to come prepared to defend. 2 M. and S., 385. And the whole matter of the defendant's false testimony must be set forth; and if the least part of one entire assignment be unproved, she could not be convicted. The offense charged consists in the whole and not in any one part of the assignment. And this, in my opinion, obviates the necessity of any opinion as to how far perjury may be committed, if the false oath has a tendency to prove or disprove the matter in issue, although but circumstantially; or how far the fact sworn to, though not material to the issue, must have such a connection with the principal fact as to (523) give weight to the testimony on that point. The views of the subject could, in this case, only be properly presented to the court trying the cause. I think the conviction is right.

PER CURIAM. Judgment reversed.

Cited: S. v. Davis, 69 N.C. 496.