State v. . Ledford , 28 N.C. 5 ( 1845 )

The defendant was convicted in the Superior Court of Yancey of perjury, upon an indictment which charges "that at a Superior Court of law for the county of Yancey held at, etc., on the second Monday after the fourth Monday in June, 1845, before the Honorable David F. Caldwell, one of the judges of the Superior Courts of law for the State, a (6) certain issue between one Marcus L. Penland and one John Ledford in a certain plea of trespass on the case, wherein the said Marcus L. Penland was plaintiff and the said John Ledford was defendant, came on to be tried in due form of law, and was then and there tried by a jury," etc. The indictment then states that the defendant appeared as a witness for John Ledford, and was duly sworn, etc., "before the Honorable David F. Caldwell, so being judge as aforesaid; that the evidence, etc. (he, the said David F. Caldwell, judge as aforesaid, then and there having sufficient and competent authority to administer the said oath to the said Samuel Ledford in that behalf"). It then states the materiality of certain questions, the evidence given by the defendant relative thereto, and assigns the perjury in the usual form.

For the purpose of showing on the trial of the present indictment that the evidence of the prisoner was given in the Superior Court of law for Yancey, and upon the trial of an issue joined in a suit between the persons mentioned in the indictment, the solicitor for the State offered to read the records of the Superior Court of law for Yancey, showing that the trial took place in that court, as charged. But the counsel for the prisoner remarked that "it was unnecessary to read them, as the prisoner admitted that a special term of the court was held and that Judge Caldwell presided, and that the prisoner was sworn on the trial, as set forth."

In the defense it was admitted that the prisoner swore falsely, but it was insisted that he did not swear corruptly. On that point the court left the case to the jury, who found the prisoner guilty.

The prisoner's counsel moved for a new trial because Judge Caldwell's commission was not proved on the trial, and because it was not proved by the record that the judge who held the Superior Court of Yancey at the preceding Spring term had ordered the term of the court to be held on the second Monday after the fourth Monday of June, 1845. The court overruled the motion.

The counsel then moved in arrest of judgment because the indictment did not set forth an order of the court at the preceding (7) term for the term held in July, nor charge that Judge Caldwell was appointed by the Governor to hold it. This motion was also overruled and sentence passed on the prisoner, and he then appealed. The objections will be most conveniently disposed of by first considering those to the indictment. It is certainly necessary the indictment should show that the false oath was taken in a judicial proceeding, and, in order thereto, it must show a matter pending in some court having competent jurisdiction and held by a person authorized to do so.

Those matters must be truly laid, because the proof must establish them in order to constitute the imputed perjury. Here the indictment lays the trial of a certain suit in the Superior Court of law for Yancey County at a certain term of that court which was held on the second Monday after the fourth Monday of June, 1845, by and before JudgeCaldwell, one of the judges of the Superior Courts of law for the State, and lays the perjury to have been committed on that trial. This we hold to be sufficient. Laws 1842, ch. 49 (being the act of 1791, ch. 7, reenacted), expressly makes it sufficient for the indictment to set forth "by what court or before whom the oath was taken (averring such court or person to have competent authority to administer the same), without setting forth any part of any record, and without setting forth the commission or authority of the court or person before whom the perjury was committed." There is no doubt that on the trial the evidence must establish that the particular court was held, and duly held, at the time and place, and by the person or persons stated in the indictment. How those facts are to be proved is another (8) question, which is hereafter to be considered. We are at present inquiring whether there are adequate averments on those points in the indictment. We think there are; for the indictment is according to the precedents under the act of 1791, and the statute 23 Geo. II., from which ours was taken, mentioning the court, the term, and the judge presiding therein. That would not be contested had the term been an ordinary semiannual term, held on the day designated in the public statute. But the court was held on this occasion, by way of special term, under the "Act for the more speedy administration of justice," 1842, ch. 16; and it seems to have been supposed that makes a difference. The act provides that when the business of a Superior Court cannot be done at the regular term, the judge holding the court may, by an order made at the regular term next preceding, appoint a special term, which shall be held at the time appointed, and all civil causes may be tried under the same rules as are prescribed for holding the regular terms of the court. The judge appointing a special term is required to notify the Governor of it, and it is the duty of the Governor to designate one of the judges (other than the one appointing the special term) to hold the court, and notify the judge of his appointment. And the act provides that witnesses, suitors, and officers of the court shall attend at the time appointed, as at a regular term of the court. This is the whole scope of the act. It creates no new court, but it is still the Superior Court of law, held by a judge of the Superior Courts of law, and having the same jurisdiction in trying civil actions. It is true, there is to be a special term of the court; but that does not change the style of the court. It is clear, too, that the special term is not a part of the preceding regular term, continued by adjournment from the regular term, and to be so stated in pleading. It is an original term, and is properly stated as beginning on such a day, (9) since the act distinguishes it from that at which it was ordered by calling the one the special term of the Superior Court and the other the "preceding term." The court is, therefore, properly described in the indictment, and the particular term is sufficiently shown by the period at which it is stated to have been held.

Nor was it necessary the indictment should set forth that the judge was designated by the Governor to hold the court; for that comes within the reason, if not the words, of the act dispensing with a statement of the judge's commission. The truth is, however, that such designation or appointment is not in the nature of a special commission or authority to hold a court created by the act; but the powers of the judge are derived from his election and commission as a judge of the Superior Courts, and the designation directed by the act serves only to make it the duty of the particular judge to hold the particular term. This is clear from the provisions of the Constitution which allow the Governor to commission only judges appointed by the General Assembly, or, temporarily, those appointed by himself with the advice of the Council of State. The provision of the act of 1842, ch. 16, is nothing more than a mode by which the judge is assigned to the duty of holding a particular term of a Superior Court by the Governor, as the judges were formerly to their circuits, and as they are now allotted to the circuits by themselves. Such an allotment was never stated in any indictment for perjury, nor, indeed, proved on the trial. All persons must take notice of the judicial character of the persons who are the judges of the highest courts of original jurisdiction, civil and criminal. S. v. Kimbrough, 13 N.C. 431. It is, therefore, sufficient that the indictment should set forth a Superior Court of law held by one of the judges of those courts, because that constitutes a tribunal of competent jurisdiction.

The motion in arrest of judgment was, therefore, properly (10) overruled.

The preceding observations will have served in a great degree to show that the Court also thinks the conviction was on sufficient evidence. In reference to the judge's commission, we have already said, upon authority, that his official character is to be judicially noticed. There can be no such absurdity in the law as that the judge who by the general law and a permanent commission holds a Superior Court is to listen to evidence that he is the judge of the Court. The record made by him establishes to those who succeed him that he held the court at the terms at which, according to the purport of the record, he appears to have held them. Besides, even in the case of an inferior officer, it is sufficient, in the first instance, to establish his capacity, for example, to administer the oath, that he was acting as an officer that legally hath such capacity. Rex v. Verelst, 3 Camp., 432; 4 Term, 366.

As to the other point, that it was not shown by the record that there had been an order for a special term, it might be sufficient to answer that the prisoner admitted the fact. He expressly admitted that the special term was held, and by Judge Caldwell, which, under the circumstances, must be deemed to be an admission of a lawful special term. By dispensing with the reading of the records, everything is to be inferred that could have been established by the records. But, in reality, no such proof was requisite. As a Superior Court, the regularity of its proceedings in point of time, as in other things, is to be presumed, unless the contrary appear. Inasmuch as the special term might lawfully be held, the fact that it was held on a particular day, at the proper place, establishes, at least prima facie, that it was the due and proper time for holding it. We cannot assume that the special term was held when none was ordered, nor that it was held at a different time from that ordered.

PER CURIAM. No error. (11)

Cited: Sparkman v. Daughtry, 35 N.C. 170; S. v. Harvell, 49 N.C. 56;Gudger v. Penland, 148 N.C. 600.