State v. Keziah

127 S.E.2d 784 (1962)

258 N.C. 52

STATE v. Vernon KEZIAH.

No. 222.

Supreme Court of North Carolina.

October 31, 1962.

*785 Ledford & Ledford, Charlotte, for defendant appellant.

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

BOBBITT, Justice.

Defendant contends inter alia that, with reference to what Keziah testified in *786 the Recorder's Court, there is a fatal variance between the indictment and the proof. This question is properly presented by defendant's motion for judgment as of nonsuit. State v. Hicks, 233 N.C. 31, 62 S.E.2d 497, and cases cited; State v. Law, 227 N.C. 103, 40 S.E.2d 699, and cases cited.

"* * * a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment." State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 A.L.R. 143, and cases cited. "The evidence must correspond with the charge and sustain it, at least in substance, before there can be a conviction." State v. Forte, 222 N.C. 537, 23 S.E.2d 842.

"In a prosecution for perjury or false swearing, the matter sworn to must be proved substantially as alleged, and a material variance in this respect is fatal." 70 C.J.S. Perjury § 50g; 41 Am.Jur., Perjury § 55; State v. Bradley, 2 N.C. 403, and s. c., 2 N.C. 463; State v. Groves, 44 N.C. 402; State v. Davis, 69 N.C. 383.

The State was required to establish inter alia that Keziah testified in the Recorder's Court of Charlotte as charged in the bill of indictment. State v. Lucas, 247 N.C. 208, 212, 100 S.E.2d 366, 63 A.L.R. 2d 820. The indictment charges that defendant testified "he did not purchase liquor from said Johnny Johnson and Charles Erwin." Defendant contends the State offered no evidence that Keziah so testified and that in this respect the proof does not fit and support the allegation. State v. Gibson, 169 N.C. 318, 85 S.E. 7. We are of opinion, and so decide, defendant's said contention is sound and that his motion for judgment as of nonsuit should have been allowed for fatal variance between the indictment and the proof.

There is ample evidence that Keziah's testimony in certain respects was false, particularly his testimony that he did not receive from Shuler the marked $5.00 bill and his testimony that he did not deliver the pint bottle of whiskey to Shuler. But we find no evidence that Keziah testified he did not purchase liquor from Johnson and Erwin or from either of them. Keziah's testimony that he did not buy any whiskey "in that house" does not fit and support the crucial allegation in the perjury indictment, namely, that he falsely asserted on oath "that he did not purchase liquor from said Johnny Johnson and Charles Erwin." The applicable rule is well stated in the per curiam opinion in State v. Bradley, 2 N.C. 463, decided in 1797, as follows: "* * * where the sense and meaning of the words set down in the indictment is precisely the same with those proven in the evidence, though not the very same words, such evidence will support the indictment; but then the meaning must be evidently and clearly the same, without the help of any implication or anything extrinsic." Here, as in State v. Bradley, supra, "(t)he words contained in the evidence are not necessarily of the same sense and meaning with those laid."

We need not consider other contentions advanced by defendant as additional grounds for judgment as of nonsuit.

Reversed.