19 S.E. 149 | N.C. | 1894
On the trial it appeared that at a previous term of the court the defendant and his wife were tried for an assault and battery upon one Dooms, and that the defendant had testified in that trial that he had no knife in his hands during the fight with Dooms, but that he struck Dooms several times with his fist. The fight occurred about 1 July, 1893, and the indictment for the assault was at October Term, 1893, which charged that the defendants therein, John and Rosa Ridley, did assault Dooms with a deadly weapon, to wit, "a certain rock, knife and brickbat."
On the trial of this indictment for perjury, witness testified that John Ridley did have a knife in his hand, but did not attempt to strike Dooms with or to use it. Witness for the defendant testified that he had no knife or other weapons in his hands at the time of the (828) fight.
The defendant requested the court to charge, among other things, as follows: "That the indictment in the criminal action entitled The State of North Carolina against John Ridley and Rosa Ridley charged an assault and battery with a certain deadly weapon, to wit, a rock, a knife and a brickbat; and having charged that the said assault and battery was committed on 1 July, 1893, and the said indictment having been found upon a warrant at October Term, 1893, of the Superior Court of Durham County within six months of the time of the commission of the alleged assault and battery, the Superior Court had no jurisdiction of said offense, and the defendant is not guilty."
The defendant was convicted, and appealed, assigning as error the refusal of the instruction prayed for. The Superior Court has general jurisdiction of all assaults and batteries; and where, in an indictment found in October, 1893, the charge was that the defendant, "on the first day of July, 1893, did *510 unlawfully assault, beat and wound one Henry Dooms with a deadly weapon, to wit, a certain rock, knife and brickbat," etc., if the description of the weapon had been omitted altogether it would not have appeared from the indictment that there was a want of jurisdiction, because, time not being of the essence of the offense, the charge would have been sustained and the jurisdiction maintained by proof of a simple assault, more than one and less than two years before the said 1 July, 1893. To sustain an indictment for perjury, it is necessary to (829) show that the court had jurisdiction of the subject-matter of the inquiry. But where the court had general jurisdiction (which in this case was exercised, culminating in conviction), and there are circumstances which, if they had been shown, would have made a particular case was exception to the general rule, a defendant convicted on a former trial, wherein he is charged to have committed perjury, cannot reopen the case in which he was tried, and show as matter of defense against the charge of perjury the circumstances that would, if proved on the trial, have ousted the jurisdiction of the court. It is too late to question the right of a court to take cognizance after conviction; and when there is nothing on the face of the record that gives rise to any doubt as to the jurisdiction, and this is true, even though a new trial may have been granted for error of the court. 2 Bish. Cr. Law, sec. 1028 (5). In such a case it must be conclusively presumed that the defendant offered no evidence to defeat the jurisdiction, because he could not. The oath cannot be deemed extra-judicial while the conviction and judgment are still undisturbed and upon the face of the record appear to be valid, not void. 1 Bishop, supra, sec. 440 (4). The question is whether the jurisdiction existed, not whether it might, by the introduction of extrinsic facts on the trial, have been defeated. 18 A. E., 303; S. v. Wyatt, 2 Hogan, 219; 2 Wharton Cr. Law, sec. 1258.
It may be said, generally, that where the jurisdiction of the court is voidable by matter de hors, but no defect of authority appears upon an inspection of the record of an indictment, trial and conviction, such a record cannot be collaterally impeached in a prosecution for perjury for taking a false oath in the course of the trial, by showing that the jurisdiction might have been ousted, though it was not defeated. 1 Bishop,supra, sec. 1028.
Upon the face of the record it does not appear that it was (830) essential or material even to have proved on the trial the commission of any offense other than a simple assault, committed more than one and less than two years before the finding of the indictment. It is needless, therefore, to discuss the question whether a knife, a brickbat or a rock (any one of the three) is per se, and without special proof of its character or dimensions, a deadly weapon. The presumption *511 that the defendant was convicted of the assault, and, in the exercise of the rightful authority of the court, is, for the purposes of this trial conclusive. It might have been material to know whether the defendant had a knife in his hand at any time during the progress of the fight, in order to determine whether he entered into the conflict willingly and thereby became guilty of a simple assault. We are warranted in assuming, from the testimony offered, without entering into a trial de novo of that indictment, that it did become material to show that the defendant, John Ridley, had a knife in his hand, though he may not have used or attempted to use it.
There was no error in refusing the instruction asked.
No error.
Cited: S. v. Amis,
(831)
