In Re Roberts

174 S.E.2d 667 (1970)

In the Matter of Allan Edward ROBERTS, Born, April 10, 1955.

No. 7021DC243.

Court of Appeals of North Carolina.

June 24, 1970.

*668 Robert Morgan, Atty. Gen., by Rafford E. Jones, Raleigh, Staff Attorney, for the State.

Barbara C. Westmoreland, Winston-Salem, for respondent appellant.

GRAHAM, Judge.

In a prosecution for subornation of perjury, the falsity of the oath of the alleged perjurer must be established by the testimony of two witnesses, or one witness and corroborating circumstances, sometimes called adminicular circumstances. State v. King, 267 N.C. 631, 148 S.E.2d 647; State v. Allen, 260 N.C. 220, 132 S.E.2d 302; State v. Lucas, 247 N.C. 208, 100 S.E.2d 366; State v. Sailor, 240 N.C. 113, 81 S.E.2d 191. The State contends that the above requirement was met in that two witnesses, a police officer and the court family counsel, testified over objection that each of them heard Sonny Stanley testify under oath in a juvenile proceeding, wherein respondent was alleged to have stolen an automobile, that Stanley and the respondent had not stolen an automobile, but had hitch-hiked up to Virginia and Maryland on the date the theft allegedly occurred. The witnesses also testified that later on the same date, Stanley returned into court and they heard him state under oath that he had lied in his earlier testimony in that he and respondent had in fact stolen the automobile. The witnesses also stated that Stanley had told them he had lied because respondent had asked him to do so. The testimony of Stanley tended to show that he had been induced to lie in court by respondent.

We cannot distinguish this case from State v. Sailor, supra, where the Supreme Court stated:

"All that the evidence tends to show is that the alleged suborned witness at one trial swore, and at another time stated, that she did not purchase from defendant the whiskey found in her possession, and that she, on another trial swore, and at other times stated, that she did purchase the whiskey from defendant. And while there is testimony of officers, admitted for the purpose of corroboration, and tending to corroborate her as to what she had testified and stated, there is no evidence of corroborating circumstances tending to show which statement was false. Indeed, the Attorney-General, in brief filed here, states: `It is true that all the evidence presented goes directly back to the State's witness * * * the alleged suborned perjurer.' There is no evidence of any independent circumstance. Hence, motion of defendant for judgment as of nonsuit entered at the close of the State's evidence should have been sustained."

The recent case of State v. King, supra, reaffirms the principles of the Sailor case.

It is true that perjury and the subornation of perjury are reprehensible *669 and socially disturbing acts. It may well be, as the State suggests in its brief, that the better rule would not require two witnesses, or one witness with corroboration to establish subornation of perjury. However, this court is not at liberty to overrule the long line of cases in this jurisdiction which unanimously hold otherwise. Furthermore, we note that the rule followed for so long in this jurisdiction is not without reason. As stated by Justice Seawell in State v. Hill, 223 N.C. 711, 715, 28 S.E.2d 100, "* * * the law, from ancient times, has not been willing to `take one man's word against another' upon a question of veracity, since, roughly speaking, it merely establishes an equilibrium."

The testimony of the police officer and the family counselor in this case simply went directly back to the testimony and statements made by the alleged perjurer. Accordingly, their testimony established no evidence of independent circumstances and under the authority of Sailor and King the evidence was insufficient to make out a case of subornation of perjury.

The remaining question is whether there was sufficient evidence to permit a finding that respondent is a delinquent, even though the evidence was insufficient to convict him of the crime alleged in the petition. G.S. § 7A-278(2) defines a delinquent as follows:

"(2) `Delinquent child' includes any child who has committed any criminal offense under State law or under an ordinance of local government, including violations of the motor vehicle laws or a child who has violated the conditions of his probation under this article."

The case of In re Alexander, 174 S.E.2d 664 (filed in this court on this date) involved this identical question. There, Parker, J., speaking for the court, stated:

"While juvenile proceedings should not be equated to criminal prosecutions nor should a finding of delinquency in such a proceeding be deemed synonymous with conviction of a crime. In re Burrus, 275 N.C. 517, 169 S.E.2d 879, nevertheless certain constitutional safeguards apply. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368; In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527. The majority opinion in Winship, which was decided 31 March 1970, held that `the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gaultnotice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination.' While the record before us does not disclose what standard of proof was applied by the district judge in making the factual determination upon which the order here appealed from is based, the evidence in the present case was not sufficient, if this had been a criminal prosecution against an adult for larceny, even to justify submission of the case to a jury. In such case a judgment of nonsuit would have been required. It is no less required in a case in which a juvenile is involved, regardless of whether the nature of the proceedings require that the juvenile be designated a respondent rather than be designated as a defendant."

Following the principles enunciated by Judge Parker in the above case, we hold that the petition against respondent in this case should have been dismissed. Respondent's assignment of error with respect to the court's failure to do so is well taken.

Reversed.

MALLARD, C. J., and MORRIS, J., concur.