State v. . Murphy

8 S.E. 142, 101 N.C. 697

• Court: Supreme Court of North Carolina
• Decided: September 5, 1888
• Status: Published

Opinion

Merrimon, J.

(after stating the case.) The motion in .arrest of judgment was properly disallowed. No one of the grounds assigned in support of it is tenable.

The indictment charges, in an intelligent and orderly manner, that a certain criminal action, specified by its title .and other descriptive facts, was pending at a specified time in and before a Court of competent jurisdiction to try and .dispose of it — its specific nature and purpose and how and by what means the offence charged therein was committed ; that it was at issue — that on the trial the defendant was produced as a witness for the State and duly sworn —the Court having competent authority,to administer the oath ; that a material question, the substance of which is charged, arose ■on the trial; that the defendant, as such witness sworn, testified on the trial and gave material evidence, the substance of which is charged in such terms and with such fullness as to show its materiality. The truth of this evidence, it is true, is not negatived in express terms, as it should have been, but it is certainly denied in effect by charging particularly, specifically and in detail that what the defendant so testified to as true was not done as she said. The falseness of the particular material evidence of the defendant charged thus .appears, and is charged by necessary implication, and with such clearness and precision as that the Court and the defendant could certainly see that such testimony of the defendant is charged to be false. This was sufficient to serve every just purpose.

It was material on the trial of the criminal action mentioned in the indictment to prove that the assault and battery therein charged was committed with a pistol, as charged,, in order to show the grade of the offence and the jurisdiction of the Superior Court in which the action was pending {The Code, ■§ 892); and if he used' it at all in committing the offence, it was material to show that fact, whether the defendant in that action in using it fired it at the person assaulted or struck him with it, or attempted to do so. It was material to show that he used the pistol in some — in any — way in committing the assault, because the use of that weapon — - a deadly One' — -gave the Superior Court jurisdiction of the offence. Wherefore charge with more particularity the-defendant’s testimony as to the particular manner in which and the purpose for which it was used? If she testified that it was used by the party on trial in any way and for any purpose in committing the offence, the testimony was material ; and if she swore falsely, and did so wilfully and corruptly, that it was, when, in fact, it was not, she committed perjury. The charge in this respect was sufficiently definite to give to her to understand in what particular she swore-falsely, and to enable her to prepare her defence.

The indictment sets forth the substance of the offence charged “ in a plain, intelligible and explicit manner,” with such fullness as that the Court could see that it was charged,- and it gave the defendant such information as was necessary to enable her to make defence on trial and in case of a subsequent prosecution. Although it is not so precise and satisfactory in some particulars as it might have been made, we concur .with the Court below in holding that-it is sufficient,, under the statute [The Code, §§ 1183, 1184, 1185), the purpose of which is to render unnecessary merely useless refinements and technicalities in pleading that once prevailed in cases like the present one. State v. Hoyle, 6 Ired., 1; State v. Davis, 69 N. C, 495; State v. Roberson, 98 N. C., 751.

Nor is the error assigned as to the special instruction asked on the trial well founded. The evidence that the defendant testified that the pistol was presented at her was wholly immaterial, but the evidence that she testified that it was presented at her and the prosecutor in the criminal action on the trial of which she was examined as a witness, was material, because it tended to prove the guilt of the defendant in that action, and to show that the Court had jurisdiction of the offence therein charged. It is not suggested that the immaterial evidence misled the jury to the prejudice of the defendant, and she was not entitled to the particular instruction she asked for. AVhat instruction the Court gave the jury does not appear, but the presumption is that it was correct and satisfactory, as there was no exception to it.

There is no error. Affirmed.