State v. Whisenhurst. , 9 N.C. 458 ( 1823 )

Hall, Judge.

The act vi í'i77y ch. 10b, aec. 2, ;jeús lorió fije ksíi;í! mode su which of.tbs ara eaiiEiotey asl-inimsiemf; neccording to which, the hand o? the per* koíí sworn ir. laM apon íde TIoIy ii «y ¡relíe te, and iba <>a1Í2 ir» concluded by kissing the bool: which contains tuem. By sec. C, it io declared, tiial whore, any person is conscientiously scrupulous of taking a book oath its the manner as before pointed out, ho may be sworn with nu spirited hand, the ruünsee end form of which is also pointed out. When a witness coinés before any tribunal, li Is io be presumed that he Hs settled the point with himself in what manner ho will bo qoaltiieti and sworn to give evidence. It cannot he eicpected. that the Court or Clerk can be the keeper of his cour,elenco. It was for the Defendant, Whtsenhurst, to make known to the jus* lice whether he objected to, or preferred being sworn with an uplifted hand, if he did not object, it ¡mint be taken that he, not only acquiesced, hut preferred that mode of being sworn. If a diíihront rule is laid down, the consequence will he, that every person who shall hs guilty of perjury, will ward off flic punishment due to it, who can find a Jury that will say he is conscientiously ¡scrupulous or not, as bis case may require. A person may as well say, after being sworn in the common way, that he was conscientiously scrupulous, as to say that he was not conscientiously scrupulous after having been sworn with an uplifted hand. ELe had a choice, given by the law* before he was sworn ; when sworn lie has made his election. Afterwards it is too late to retract.

I think judgment should he rendered for the State against the Defendant, upon the speciarverdict.

And of this opinion was the rest of the Court.