State v. Wilson , 30 N.C. App. 149 ( 1976 )

226 S.E.2d 518 (1976) 30 N.C. App. 149

STATE of North Carolina
v.
John J. WILSON.

No. 7525SC772.

Court of Appeals of North Carolina.

July 21, 1976.

Atty. Gen. Rufus L. Edmisten by Senior Deputy Atty. Gen. R. Bruce White, Jr., Asst. Atty. Gen. Zoro J. Guice, Jr. and Associate Atty. Gen. Guy Hamlin, Raleigh, for the State.

Wilson & Palmer by W. C. Palmer and G. C. Simmons, III, Lenoir, for defendant-appellant.

PARKER, Judge.

Defendant first assigns error to the denial of his motion to quash the indictment. He contends that it lacks "such certainty in the statement of accusation as will identify with particularity the offense sought to be charged." We do not agree.

The essential elements of the crime of perjury, as defined by common law and extended by G.S. 14-209, are substantially these: "a false statement under oath, knowingly, willfully and designedly made, in a proceeding in a court of competent jurisdiction, or concerning a matter wherein the affiant is required by law to be sworn, as to some matter material to the issue or point in question." State v. Smith, 230 N.C. 198, 201, 52 S.E.2d 348, 349 (1949). By statute in this State, G.S. 15-145, in an indictment for perjury "it is sufficient to set forth the substance of the offense charged," and the statute prescribes a form of indictment which shall be sufficient. We find that the indictment on which defendant was tried adequately sets forth the substance of the offense charged and that it conforms in all essential respects with the statutory form set forth in G.S. 15-145. Defendant's first assignment of error is overruled.

Defendant next contends that, even if the bill of indictment is valid, the court erred in denying defendant's motion for a bill of particulars. G.S. 15-143, applicable to defendant's trial, provided for the furnishing of further information not required to be set out in the indictment and placed the grant or denial of a motion for such information solely in the discretion of the court. (G.S. 15-143 was repealed by Session Laws 1973, c. 1286, s. 26, effective 1 September 1975; for presently applicable statute, see G.S. 15A-925). The ruling by the court on such a motion is not subject to review except for palpable and gross abuse of discretion. State v. Lippard, 223 N.C. 167, 25 S.E.2d 594 (1943). We find no abuse of discretion in the present case. The bill of indictment is sufficiently specific to inform defendant as to the statements by which he was alleged to have perjured himself. Furthermore, although the bill of indictment was returned approximately nine months previously, defendant did not request a bill of particulars until the day the case was called for trial. Defendant's second assignment of error is overruled.

Defendant contends the court erred in allowing the court reporter from the previous Pearson murder trial to read in its entirety the transcript of defendant's testimony at that trial. Defendant concedes such a transcript would have been admissible in his perjury trial (1) for the limited purpose of identifying the proceedings at which it was alleged he committed perjury and (2) for the determination, by means of reading selected portions of his testimony, of whether he had made such statements and whether such statements were material to the issues of the Pearson case. Defendant asserts, however, that to allow the entire transcript of his testimony to be read without limitation was prejudicial error. We find no error. In State v. Mann, 219 N.C. 212, 13 S.E.2d 247 (1941), introduction of the transcript of testimony given in a former trial was not limited solely to those portions containing the alleged perjured testimony. Although portions of defendant's testimony at the Pearson murder trial may have been irrelevant to any issue raised at his perjury trial, upon careful examination of the record before us, we find no way in which the admission of such irrelevant material was prejudicial to the defendant.

Defendant makes several assignments of error relating to the testimony given by the witness Watson. We find no merit in any of these. Watson's testimony given on direct examination at defendant's perjury trial, in which he admitted that he had himself testified falsely at the Pearson murder trial, was not admitted in violation of the general rule against impeachment of one's own witness. Such testimony was not introduced by the State for the purpose of impeaching the credibility of Watson but was admitted for the purpose of establishing the falsity of the oath of the defendant, who had corroborated Watson's testimony at the former trial. Defendant's contention that Watson's testimony was irrelevant and inflammatory is likewise without merit. Such testimony bore directly on the issue of defendant's alleged perjury. Defendant's objection to Watson's testimony that defendant was not at the Country Club parking lot on the night in question cannot be upheld. This clearly related to a matter within Watson's own knowledge concerning which he was competent to testify. Similarly, testimony by Watson both concerning conversations held by him with defendant Wilson prior to the Pearson murder trial to discuss testimony to be given by them at the Pearson trial and concerning who directed him to falsify his evidence was properly admitted as being within Watson's own knowledge and as having a direct bearing on defendant's alleged false testimony.

Defendant assigns error to the court's denial of his motion for nonsuit. Considering the evidence in the light most favorable to the State and giving the State every reasonable inference from the evidence presented, we find the evidence amply sufficient to warrant submission of the case to the jury. In a prosecution for perjury it is required that the falsity of the oath be established by the testimony of two witnesses, or by one witness and corroborating circumstances sufficient to turn the scales against the defendant's oath. State v. Sailor, 240 N.C. 113, 81 S.E.2d 191 (1954). Here, the State presented the testimony of Watson that defendant was not present at the scene and therefore could not have testified truthfully concerning the events which under oath he so vividly described at the Pearson trial. Corroborating this was the testimony of Miller and King, who were eyewitnesses at the scene, and who testified to a course of events diametrically opposed to those described in defendant's sworn testimony at the Pearson trial, including especially his testimony concerning the matters alleged in the bill of indictment. There was no error in denying the motion for nonsuit.

Defendant contends the court erred in the following portion of the charge, relating to the element of "materiality" of the defendant's alleged perjured testimony, in which the court instructed the jury that to find defendant guilty of perjury:

". . . the State must prove that the testimony was material; that is, that it tended to mislead the jury in regard to a significant issue of fact. Whether Charles Austin Pearson on September 29, 1973, was attacked or assaulted by two men; that Charles Austin Pearson did not assault or attack anyone; and that Charles Austin Pearson did not go to the automobile of W. G. Morgan was (sic) significant issues of fact in the Charles Austin Pearson trial."

Defendant asserts the effect of this charge was to instruct the jury peremptorily that the alleged false statements were, in fact, material to an issue of fact in the Pearson trial, thus invading the province of the jury on an issue of fact. We find no error. Although we have found no decision of our own Supreme Court on this point, "[t]he rule established in almost all jurisdictions in which the point has been in any way passed upon is that on a trial for perjury the question of the materiality of the alleged false testimony is in its nature a question of law for the court rather than of fact for the jury." Annot., 62 A.L.R. 2d 1027; 60 Am. Jur.2d, Perjury § 11. Although some of the decisions adhering to this rule recognize that in a given instance the evidence may be such that the issue of materiality becomes a fixed question of law and fact to be submitted to the jury under appropriate instructions, we do not find that to be so in the present case. Here, the materiality of the testimony assigned as perjury was clearly a question of law for the court.

In defendant's trial and in the judgment appealed from we find

No error.

HEDRICK and ARNOLD, JJ., concur.