State v. . Glisson , 93 N.C. 506 ( 1885 )

We see no error in these directions. It is a reasonable inference from the delivery of testimony that it comes under the sanction of an oath or an affirmation, its equivalent, inasmuch as this is an indispensable prerequisite to its being received and heard, and no objection from any source was made to its admission. Upon the legal maxim, omnia presumunturrita esse acta, it may be inferred that the conditions essential to all personal testimony had been observed or the witness would not have been heard, and against this the inadvertence of others present who may not have noticed, or whose memory is in fault, ought not to prevail.

But while this may be the general rule we are not disposed to carry it so far as to dispense with proof of the administration of an oath, which is an essential element in the crime of perjury, and allow a conviction in its absence.

(509) But the evidence is supplied in the testimony of Ivey, who says that "the defendant swore upon the trial," etc., and that hewas present when the defendant was sworn," etc.

If the defendant did not in fact take an oath, as his counsel here interprets the words of the witness who says he was sworn, it was easy for him to inquire what the witness meant to say, and to be understood as saying, when he thus testified. He states a positive fact as within his own knowledge, and it was certainly right and proper to submit the testimony to the jury for their consideration.

It would not conduce to the healthful and fair administration of justice to permit a party accused to remain silent when it is in his power to have testimony explained and its import ascertained, when it may be supposed not to express what the witness intended and then, upon the trial, put an inadmissible interpretation upon it.

The witness says the defendant was sworn, and if he was not, the accused should, by examination, have shown that he was not, or that the witness did not mean to say that it was within his knowledge that he was.

2. The objection to the proving what the defendant swore upon the trial of the civil suit in the Superior Court by the witness J. B. Pearsall, based upon his incompetency to tell the substance of all the defendant said, while he could remember and detail the substance of all he said about the contract, has been abandoned, and we think properly not insisted on.

3. The defendant insists there was no evidence of the taking the false oath to go to the jury. So far as this exception pertains to the act ofbeing sworn, it has already been considered.

If it is intended to have a wider scope, and deny that there is evidence of the false statement, it is sufficient to say that there is evidence of what that false statement was from several witnesses; and if there was none, no such exception was taken at the trial, and none such can be entertained, first taken here. The rule is well established in numerous cases. Green v. Collins, 28 N.C. 139; Gant v. Hunsucker, 34 N.C. 252;S. v. Jenkins, 51 N.C. 19; S. v. Jones, 69 N.C. 16; S. v.Hinson, 82 N.C. 597; S. v. Keath, 83 N.C. 626, and other (510) cases.

4. The prosecutor and witness, O. K. Uzzell, on cross-examination by defendant's counsel was asked if he had not himself sworn on the trial of the action against him that it had taken thirteen hands four days to put the shingles on his store, and he denied that he so swore.

Several of defendant's witnesses contradicted him and testified that he did so state, and defendant then proposed to falsify the statement and show that four hands only were sufficient to do the work, and this to prove, not the falsehood, but the bias and prejudice of the prosecutor. The latter evidence was disallowed, and to this ruling the defendant also excepted.

There is no error in the refusal to admit the proposed evidence. The matter is entirely collateral, and it is not competent to ask and elicit an answer to an inquiry foreign to the issue in order to prove it false, and thus impugn the credit of the witness. The false estimate of the time and labor needed to cover the house with shingles sheds no light upon the issue as to the false oath imputed to the defendant. The prosecutor may have committed a similar crime in the trial, but whether this be so or not, it does not refute the charge against the defendant and vindicate him.

The office of such evidence is, and can only be, to impair the credit of the prosecuting witness, and for this purpose, when a witness is interrogated as to a collateral fact, his answer is conclusive and final. All the indulgence allowable was given in permitting the prosecutor to be contradicted as to what he had sworn, and it ought not to have been extended to an inquiry into the truth of the declaration, which was but an expression of opinion. To do this would be to open a new and foreign issue, and virtually to put the witness on trial for false swearing, as well as the defendant, and distract the attention of the jury from the matter before them.

The inquiry was, therefore, properly arrested, and the minds (511) of the jurors confined to the issue of the defendant's guilt of the criminal act charged.

There is no error, and the court below must proceed to render judgment on the verdict, to which end this will be certified.

No error. Affirmed.

Cited: Hare v. Holoman, 94 N.C. 19; S. v. Ballard, 97 N.C. 446; S.v. Bruce, 106 N.C. 793; S. v. Morris, 109 N.C. 822;S. v. Kiger, 115 N.C. 751; S. v. Harris, 120 N.C. 578;Burnett v. R. R., ibid., 519; S. v. Staton, 133 N.C. 645; S. v.Wiggins, 171 N.C. 816; S. v. Kincaid, 183 N.C. 714.