61 S.E. 522 | N.C. | 1908
This is an indictment for perjury, the bill being in the following words:
"The jurors for the State, upon their oath, present: That B. S. Cline, of Catawba County, did willfully, unlawfully, and feloniously commit perjury upon the trial of an action in a justice of the peace's court, before J. H. McClelland, in Catawba County, wherein W. H. Marlow was plaintiff and B. S. Cline was defendant, by falsely and feloniously asserting, on oath, that he the said B. S. Cline, offered to D. M. Boyd, a member of the board of county commissioners (641) of Catawba County, the sum of $20 to influence his official action as a member of said board in procuring for and awarding to the said B. S. Cline the contract with the said board of county commissioners as keeper of the Home for the Aged and Infirm of Catawba County for two years, and subsequently paid to the said D. M. Boyd, commissioner as aforesaid, $10 on the said offer, after having been awarded the said contract for one year by said board, and that the said D. M. Boyd accepted the same — knowing said statement or statements to be false, or being ignorant whether or not said statement was true." *469
During the trial of the case, and after the State had introduced some of its evidence, the judge stated that "he had a serious doubt as to whether the statement in regard to B. S. Cline having offered and paid the prosecutor D. M. Boyd, money in order to secure the appointment as keeper of the poor, even if corruptly false, would in law be perjury." A juror was then withdrawn and a mistrial ordered, and the court allowed the defendant to renew his motion to quash the bill, which motion was sustained, and the State appealed.
After stating the case: In the present state of the case we are not permitted to pass upon the sufficiency of the evidence to establish the crime of perjury. Our inquiry must necessarily be confined to the allegations of the bill. It cannot be that an indictment is defective and should be quashed merely because the State has failed, if it has done so, to make out its case. The evidence is not of that character which can be considered upon a motion to quash or a plea in abatement. Sometimes, and not infrequently, extrinsic evidence is (642) heard for the purpose of passing upon the validity of an indictment upon a motion to quash, as for example, where there has been some irregularity in drawing the grand jury, or where the indictment was returned as "A true bill," in fact, the grand jury had ordered it to be indorsed "Not a true bill." S. v. Horton,
The Legislature has not only declared what shall constitute a sufficient averment of perjury in an indictment, but has actually prescribed the form of the bill. Revisal, secs. 3246 and 3247. We have held, in S. v. Harris,
The court erred in quashing the bill.
Error.
Cited: S. v. Hyman,