State v. Arthur

94 S.E.2d 646 (1956)

244 N.C. 582

STATE v. Robert P. ARTHUR.

No. 218.

Supreme Court of North Carolina.

October 10, 1956.

*647 Atty. Gen. George B. Patton, Asst. Atty. Gen. Harry. W. McGalliard, for the State.

C. M. Llewellyn, Ann Llewellyn Greene, E. T. Bost, Jr., Concord, for defendant appellant.

WINBORNE, Chief Justice.

Perjury, as defined by common law and enlarged by statute in this State, G.S. § 14-209, is "a false statement under oath, knowingly, wilfully 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, 52 S.E.2d 348, 349; and cases there cited. See also State v. Sailor, 240 N.C. 113, 81 S.E.2d 191.

And 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, "adminicular" circumstances, as the late Chief Justice Stacy was wont to say, if you please, sufficient to turn the scales against the defendant's oath. State v. Rhinehart, 209 N.C. 150, 183 S.E. 388; State v. Hill, 223 N.C. 711, 28 S.E.2d 100; State v. Webb, 228 N.C. 304, 45 S.E.2d 345; State v. Sailor, supra, and cases there cited.

Indeed, in the Hill case, supra, in opinion by Seawell, J., this Court said [223 N.C. 711, 28 S.E.2d 103]: "Conceivably, the uncorroborated testimony of one witness might produce in the minds of the jury the satisfaction to a moral certainty of the guilt of the accused; in other words, convince the jury beyond a reasonable doubt of such guilt; but it is not sufficient in law, and the instruction, therefore, that if the jury is so satisfied from the evidence beyond a reasonable doubt they should return a verdict of guilty, while a satisfactory formula in most cases, disregards conditions which the laws declares essential to conviction of perjury, and therefore is not adequate."

In the case in hand appellant invokes this principle, and excepts to the charge, Exception 58, on the ground that the trial Judge failed to instruct the jury in compliance therewith. And the State through the Attorney General in brief filed in this Court frankly states that "Although the State offered evidence of the crime of perjury through at least two witnesses and a number of corroborating circumstances, *648 it is true the court failed to charge the jury to the effect that, in order to find the defendant guilty, it must find guilt beyond a reasonable doubt from the evidence of at least two witnesses, or from the evidence of one witness together with other evidence of corroborating circumstances."

And it is further conceded that "the State is unable to distinguish the instant case from that" of State v. Hill, supra, and cases there cited.

While the case on appeal discloses sufficient evidence to take the case to the jury, and to withstand the motion for nonsuit,for error thus confessed by the State there must be a new trial. Hence it is deemed unnecessary to consider other assignments of error.

However, defendant contends that the minutes of the Superior Court as hereinabove set forth do not reflect truly what transpired in the return made by the jury in respect to a verdict; and that the true facts are as reported by the Court Reporter. In accordance therewith defendant made a motion at the June Term 1956 for correction of the minutes to speak the truth. The case was then pending in Supreme Court on this appeal. Therefore the Judge declined to hear the motion. Defendant has undertaken to appeal. See No. 219, post.

In granting a new trial, it is without prejudice to defendant to move, and to be heard, and to have the facts found, on his motion for correction of the minutes. If no verdict was rendered, the new trial here granted shall not prejudice defendant with respect to his right to be heard, if he should so desire, on question of former jeopardy.

New trial.

BOBBITT, J., concurs in result

JOHNSON, J., not sitting.