Opinion
(June Term, 1804.)
Where there was an indictment for perjury on an affidavit to continue a cause and the defendant found not guilty, and then an indictment on the same affidavit with intention to procure an attachment to issue; it was held that the proceedings on the first indictment did not support the plea of "former acquittal" to the second.
The defendant was indicted in Salisbury Superior Court at September Term, 1801, for perjury committed by swearing to an affidavit, "with intention to continue a suit the said George Williams then had pending in the Court of Equity for the said district, wherein he, the said George Williams, was plaintiff and a certain John Simmons defendant". The defendant, being charged on this indictment, pleaded not guilty; and on the trial of the issue was found not guilty.
The defendant was immediately indicted for perjury, in swearing to the same affidavit, "with intention to procure an attachment to issue against one Richard Pearson, Esq., from the Court of Equity for the District of Salisbury, for contempt." To this indictment the defendant pleaded "former acquittal for the same offense. " To which the Solicitor-General replied, nul tiel record.
One of the circumstances requisite to constitute the offense of perjury is that the oath must be taken in a judicial proceeding. 4 Black. Com., 137. If this requisite is wanting — if it is not taken in some proceedings relative to a civil suit, or criminal prosecution, it does not amount to perjury. If an oath or affidavit is made in one suit, but is used, in another suit, in which, when made, it was not intended to be used, it cannot in the suit in which it was used be considered as such an oath or affidavit, as that, if false, it would amount to perjury, because it was not made in that suit or proceeding; but it would (592) be otherwise if the indictment set forth truly the suit or proceeding in which it was made. So, it appears to me, that upon the same principle, if an oath or affidavit is made for one purpose in a judicial proceeding, but is used for another purpose, for which it was not taken, although in the same suit or proceeding, that an indictment for perjury, stating that the affidavit was made with the intention of being used for the purpose for which it really was used, cannot be sustained. So, in the present case, if the defendant's affidavit was made for the purpose of procuring an attachment to issue, etc., and not for the purpose of continuing the suit, the indictment which states that it was made for the purpose of continuing the suit cannot be sustained, because it does not set forth truly that particular proceeding in which the affidavit was made; consequently, there would be a variance between the true proceeding in which it was made and the one stated in the indictment. Very material facts may be inserted in an affidavit as to the purpose for which the affidavit may be made; but may become very material as to some purposes for which the affidavit was not made, but to which it may be applied as occasion may require.
MACAY, TAYLOR, and LOCKE, JJ., concurred with HALL, J., in opinion that there was no such record of a former acquittal for the same offense.
NOTE. — See State v. Ingles, 3 N.C. 4; State v. Williamson, 7 N.C. 216; State v. Lewis, 9 N.C. 98; State v. Jesse, 20 N.C. 98.
(593)