State v. . Brown ( 1878 )

The defendant was charged with being the father of a bastard child begotten on one Maria Williams, and upon the trial of the issue in the Superior Court of New Hanover, is alleged to have committed the perjury imputed to him in the indictment. Introduced as a witness on his own behalf he there swore that he was not the father of her child and had never had any sexual intercourse with the mother.

On the trial of the indictment and to prove the falsehood of his oath, the mother testified that the defendant was the father of the child, and several other witnesses proved his confessions that criminal intercourse had taken place between them in February, about five months preceding its birth.

The exceptions taken by the defendant (and which are stated in the opinion) were overruled by His Honor. Verdict of guilty. Judgment. Appeal by the defendant. Two exceptions which we propose to notice were taken by the (643) defendant: The transcript of the record of proceedings in the bastardy case does not correspond with the description in the indictment, and is insufficient to sustain its allegations: The indictment refers to the case as constituted "between the State and the said Benjamin Brown," and it is so designated on the minute docket of the Court, while it is insisted the proper title of the cause is "the State upon the relation of Maria Williamsv. Benjamin Brown." We do not feel the force of the objection. The substance of the record is properly set out and the case referred to as it appears on the docket, so as to admit of no doubt of its identity.

The second objection is that the false oath was not on a matter material to the issue, to wit, the paternity of the child, inasmuch as the sexual intercourse according to the course of nature must have been more than five months prior to the birth of the child to charge the defendant with being its father.

Perjury is defined to be "the taking of a wilful false oath by one who being lawfully sworn by a competent Court to depose the truth in any judicial proceeding, swears absolutely and falsely in a matter material to the point in question, whether he be believed or not." Hawkins, ch. 69, sec. 1; 2 Whar. Cr. Law, sec. 2198.

The false testimony must relate to matter material to the inquiry, and the falsity must be shown by the testimony of more than a single witness. The additional evidence need not come from another witness who also knows the fact, but may be of strongly corroborating circumstances and the admissions of the defendant. United States v. Wood, 14 Peters, 440; Rex v.Mayhen, 6 C. P., 315.

In the present case we have the positive testimony of the mother contradicting the oath of the defendant as to the paternity of the (644) child, and we have the supporting confessions made by him to different persons of his criminal intimacy with her, some months before the child was born. This strongly corroborates the mother, for while she proves a longer intimacy, sufficient according to the course of nature for him to be the father, he admits it to have existed at a laterperiod, and the jury might reasonably infer from this admission its commencement at an earlier period. There is then this corroborating evidence to turn the scale and warrant the verdict.

But suppose the false testimony to relate not to the issue of paternity but to the criminal intimacy proved by the mother, denied on the bastardy trial by the defendant, but confessed to the witnesses — is this a material matter within the rule? "Perjury may be committed," says Mr. Wharton, "in swearing falsely to a collateral matter with intent to prop the testimony on some other point"; 2 Whar. Cr. L., sec. 2229, "or in impeaching or sustaining the credit of another witness"; Ib., 2230; and so held in this State, in Molier's Case, 12 N.C. 263.

"The matter testified to must have been directly pertinent to the issue or point in question, or tending to increase or diminish the damages or toinduce the jury or Judge to give readier credit to the substantial part of the evidence. But the degree of materiality is of no importance; for if it tends to prove the matter in hand, it is enough though it be but circumstantial." 3 Greenl. Ev., sec. 195.

The rule is thus laid down by Mr. Bishop: "If any material circumstance be proved by other witnesses in confirmation of the witness who gives the direct testimony, it may turn the scale and warrant a conviction." 2 Bishop's Cr. Proceed., sec. 871.

In Rex v. Goddard, 2 F. F., 361, it is said that on an assignment of perjury by a defendant in a bastardy case, in that he had never kissed the prosecutrix, the question of maternity was held by WIGHTMAN, J., to be for the jury. 2 Whar. Cr. L., sec. 2229, (645) note S.

"If a witness swears," says LORD DENMAN, C. J., in Regina v.Schlesinger, 59 E. C. L. R., 674, "That he thinks that a certain fact took place, it may be difficult indeed to show that he committed wilful perjury, but it is certainly possible, and the averment is properly a subject of perjury as any other."

But a case still more in point is cited by Mr. Rocoe and thus stated by him: Upon an application for an affiliation order against H, the applicant who had been delivered in March, on cross-examination whether she had not had connection with G in the previous September, she denied that she had. G having been afterwards called to contradict her, swore falsely that he had had connection with her in the month named; Held, on an indictment against G for perjury that his conviction was right. For though the evidence was strictly speaking, inadmissible, yet the evidence having been admitted, it had reference to the inquiry and was calculated to mislead. Ros. Cr. Ev., 759. We have not access to the report in which the case is contained and refer to it as stated in this valuable work.

The defendant swore that he had never at any time had sexual intercourse with the woman, and consequently that he was not and could not be the father of the child. It is proved by his own confessions that such intercourse did subsist between them during pregnancy. Had this evidence come out on that trial, would it not have greatly impaired the credit of the defendant, and in a corresponding degree imparted strength to the testimony of the mother in determining the very fact at issue? Would it not have authorized deductions as to the very fact in controversy, since it would have established such intercourse at a period near to that it which the child was begotten?

We are of opinion that the false evidence was material within the meaning of the rule and authorized the verdict of the jury. We (646) have not had the benefit of an argument for the defendant, and have consequently given the record a careful examination; but we are unable to find any just ground of complaint. There is no error. This will be certified to the end that judgment be pronounced on the verdict.

No error. Affirmed.

Cited: S. v. Collins, 85 N.C. 513; S. v. Peters, 107 N.C. 882, 883;Gudger v. Penland, 108 N.C. 600; S. v. Hester, 122 N.C. 1048.