State v. . Ricketts

74 N.C. 187

• Court: Supreme Court of North Carolina
• Decided: January 5, 1876
• Status: Published

Opinion

RodmaN, J.

We will examine the exceptions of the defendant in their order.

1. This was properly abandoned.

2. Martin Horne was a party to the divorce suit in which the alleged perjury was committed. He was allowed to testify to what the defendant had sworn on the trial of that action in respect to an occurrence between him (Martin) and one Fanny Horne, and that the defendant therein swore falsely. The defendant contends that the witness (Martin) was incompetent because of the rule that a prisoner on trial for perjury can be convicted only on the testimony of two witnesses, or of one witness supported by corroborating circumstances. The rule is admitted, but it does not affect the competency of the witness in question. He was one witness to the alleged perjury, and if at the close of the case for the prosecution there had been no other witness to the same effect and no competent evidence of corroborating circumstances, the com’t would have directed a verdict of acquittal.

3. The corroborating circumstances relied on were the admissions of the defendant to Threadgill, that he had sworn falsely on the trial of the divorce suit. The defendant objected to the admission of this evidence, on the ground that the admissions were procured by undue influence. The Judge lield that the evidence did not show that they were so procured or made. We concur with the Judge.

4. The Judge excluded the evidence of one Edwards, by whom the defendant proposed to prove that about two weeks after the trial of the divorce suit the defendant told him that what he liad sworn to on the trial was true. Defendant excepted.

The case of Lullinger v. Marshall, 70 N. C. Rep., 520, cited by defendant’s counsel, does not sustain his exception. That a person who has sworn to a fact, in court, afterwards re-asserts it, has no tendency to prove that what he swore to was true. lie would be just as likely to do so if it were consciously false, as if it were true.

5. Tiie defendant contends that the judgment is void because the verdict was rendered on Sunday, the case having been tried and given to the jury on the preceding day. lie mainly relies on this exception. What religion or morality permit or forbid to be done on Sunday, is not within our province to inquire. In different Christian countries, and in different ages in the same country, very differing opinions have prevailed upon this question. In this State in general every act may lawfully be done on Sunday, which may lawfully be done on any other day, unless there be some act of the Legislature forbidding it to be done on that day. This is the principle on which the cases of Bland v. Whitfield, 1 Jones 122 State v. Williams, 4 Ire., 400, were decided. In the first case, a levy on personal property made on Sunday was held void, not because it -was void at common law, or upon the idea that the day ought, upon religious or moral doctrines, to be kept holy, but because a statute made the execution of process on that day unlawful. In the latter case, the court, while condemning the conduct of the defendant in requiring his slaves to work on Sunday as immoral and reprehensible, held that no indictment could be sustained against him, because the act was not an offence at common law, and had not been made so by statute. Sunday is frequently called “ (ties non jurirNoux.” McNally's case, 9 Co. Rep., 66, b, 3 Thomas Coke, 354 and note 3. But this means only that process cannot ordinarily issue or be executed or returned, and that courts do not usually sit on that day. It does not mean that no judicial action can be had on that day. On the contrary, it is laid down in books of authority, that warrants for treason, felony and breach of the peace, may be issued and executed on that day. I do not doubt that if the circumstances made it proper, a coroner and his jury might lawfully hold an inquest of homicide on that day, although I have no authority for the opinion. So I think that a magistrate might, upon that day, hear the case of a prisoner brought before him on a criminal charge, and admit him to bail or refuse it. “The Sabbath was made for man.” All religious and moral codes permit works of necessity and charity -on their sacred days. The instances mentioned come as fully within that description as many acts which are habitually done on Sunday, without offending public sensibility;, although in a more ascetic age they were thought sinful., The receiving the verdict of a jury, who have perhaps been long confined, and may be mentally and physically exhausted,, in order that they may be discharged, is a work of necessity within the common and the legal meaning of the word, and may be justified on religious and moral grounds. But whether this be so or not, it is not forbidden by any statute of this State, and is therefore a lawful and valid act. I think that probably it has repeatedly occurred.

We do not say how it would be, (if we may suppose such an improbable case,) if a court should undertake to sit on Sunday for the trial of actions, civil or criminal, or for giving judgments, when no extreme necessity for it existed. As long practice makes the law of a court, probably its proceedings in such cases would be deemed irregular, as was held in the in stance of taking a deposition on Sunday, in Sloan v. Whitford, 3 Ire., 307.

Pee Curiam. There is no error in the judgment, which is affirmed.

Let this opinion be certified.