25 S.E. 871 | N.C. | 1896
The defendant is indicted for perjury committed on the trial of a civil action wherein S. P. McNair was plaintiff, and John G. Smith and W. B. Smith, partners, doing business under the firm name of W. B. Smith Co., were defendants, by falsely asserting on oath that he, the defendant, had never been a member of the firm of W. B. Smith Co., knowing the same to be false, etc. The defendant testified on trial on the present action that he had never been a member of the firm of W. B. Smith Co., and that he so testified at the former trial. A number of other witnesses were examined for the (857) defendant and the State, and a verdict of guilty was rendered.
His Honor instructed the jury that the State must satisfy them beyond a reasonable doubt that the defendant was a member of the said firm, and charged them as he understood the rule of evidence in a civil action. His Honor then referred to the bill of indictment and told the jury, "And the defendant can not show that, as a fact there was no such copartnership at the time, by way of defense. But, nevertheless, it is incumbent upon the prosecution to satisfy the jury beyond a reasonable doubt that the defendant was a member of the firm of W. B. Smith Co., at the time that the alleged false oath was taken." Defendant excepted. In the first sentence of the above quotation there is error. Whether the defendant was a member of the firm was a material question, and much of the evidence on both sides was directed to it. The *537 State was allowed to show the affirmative, and we can conceive of no reason why the defendant should not be allowed to show the negative, and know of no authority denying the privilege of doing so.
The effect of the charge was to withdraw from the jury the defendant's evidence on that material question. Some of the State's witnesses testified that the defendant had told them he was a member of the firm of W. B. Smith Co. Assuming that he had so told the witnesses, he was still at liberty to show on the trial that he was not a member, and that his statement to the witnesses was not correct. To refuse this privilege would be to establish a very high grade of estoppel in criminal proceedings.
ERROR.
Cited: Daniels v. Fowler,
(858)
