State v. . Carland , 14 N.C. 114 ( 1831 )

The indictment, after stating the suit, in which the perjury was charged to have been committed, proceeded as follows: "And the jurors aforesaid, upon their oath aforesaid, do further present that the said Hiram Carland, being a wicked and evil disposed person, and unlawfully and unjustly contriving and intending, contrary to truth and justice, to, etc."Setting out the several matters sworn with averments contradicting them, and concluded in these words: "And so the jurors aforesaid, upon their oath aforesaid, do say that the said Hiram Carland, of his own most wicked and corrupt mind and disposition, did commit willful and corrupt perjury, to, etc." The counsel for the defendant, admitting the insufficiency of the objections, stated in the record as having been taken on the trial in the Superior Court, move here in arrest of judgment upon the ground that the indictment does not charge that the defendant swore willfully and corruptly.

Under the statute, it is clear the objection is a good one. It seems to be equally so at common law. In our search for precedents, not one has been found, except that in Cox's case Leach, 69, in which those epithets are not both applied to the act of swearing. They enter into the definition of perjury at common law. And whatever evil intent may be alleged in the indictments as moving the defendant to take the false oath, the very taking of it must be stated to have been done deliberately, and with a wicked purpose, at that moment existing. This has been expressed by applying those terms willful and corrupt to the act of swearing. Cox's case established that one of them might be supplied by maliciously. That has been doubted, and never followed, though I suppose it would be in a case precisely in point. But in no instance hath the omission of both been allowed, thoughfalsely and maliciously were used. And in a very late case, in the King's Bench, in 1826 (Rex v. Stephens), this very point came directly before the Court, when the indictment was held bad on a motion in arrest of judgment. This is of the more authority, because the statute 23 George II, ch. 11, provides in that country for simplifying indictments for perjury, as our own does here.

PER CURIAM. Judgment arrested.

Cited: S. v. Davis, 84 N.C. 788.

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