{
  "id": 8621918,
  "name": "STATE v. E. L. MANN",
  "name_abbreviation": "State v. Mann",
  "decision_date": "1941-02-26",
  "docket_number": "",
  "first_page": "212",
  "last_page": "214",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T22:38:18.105136+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. E. L. MANN."
    ],
    "opinions": [
      {
        "text": "Schencx, J.\nThe sole question presented by the brief of the appellant is: Was there sufficient evidence to be submitted to the jury upon an essential element of the crime charged, namely, that the defendant was sworn in the former trial in which it was alleged the false statement was made? There was ample evidence that the statement was made in a court of competent jurisdiction, that it was false, and that it was material to the issue being tried.\nThe evidence relied upon by the State relative to the question involved in this appeal consisted of (1) the testimony of Miss Kate Wade, who testified that she was the court reporter at the October Term, 1939, of Dare County Superior Court, in the case of \u201cState v. E. L. Mann,\u201d and that she transcribed the evidence that E. L. Mann gave in that case, and identified the trancription of his testimony, whereupon (2) such transcription was introduced in evidence, containing, inter alia, the following : \u201cE. L. Mann, being duly sworn, testified: . . . I wasn\u2019t driving at all. . . . Mrs. Midgette was driving and stopped and said let somebody else drive, she didn\u2019t want to drive any more. . . .\u201d (3) the testimony of W. J. Griffin that he was one of the jurors in the case where the defendant \u201cwas tried for drunken driving,\u201d and that \u201che testified that Mrs. Midgette was driving the night of the collision,\u201d and (4) the testimony of C. S. Gregory that \u201cMr. Mann testified that the car was stopped at the time of the collision. . . .\u201d\nBoth the defendant and the State rely upon S. v. Glisson, 93 N. C., 506. Upon a careful examination of this case we are constrained to hold that it sustains the position of the State rather than that of the defendant. The case holds in effect that while it is a reasonable inference from the delivery of testimony in a trial it comes under the sanction of an oath or solemn affirmation, upon the legal maxim \"Omnia pre-sumuntur rita esse acta,\u201d the Court is not disposed to carry the inference so far as to dispense with any further proof of the administering of an oath, which is an essential element in the crime of perjury, and allow a conviction in its absence.\nIn the Glisson case, supra, there was other evidence than that the false testimony was delivered in a regularly constituted trial to the effect that \u201cthe defendant swore upon trial\u201d and that the witness \u201cwas present when the defendant was sworn.\u201d It was held in absence of any evidence from the defendant that the evidence of the State was sufficient to sustain a verdict of guilty.\nIn the case at bar we have substantially the same situation: Evidence that the false testimony was delivered by the defendant in a court of competent jurisdiction, evidence of the defendant \u201cE. L. Mann, being duly sworn,\u201d and evidence that the defendant testified when \u201ctried for drunken driving\u201d that \u201cMrs. Midgette was driving.\u201d\nIf the defendant did not in fact take an oath it was easy for him to inquire what the witness meant when she transcribed his evidence, and made the entry, \u201cE. L. Mann, being duly sworn.\u201d The entry is tantamount to a positive statement of the fact of the defendant having been sworn and unchallenged was proper to be submitted to the .jury for their consideration. S. v. Glisson, supra. This is strengthened by the other evidence that the defendant testified in the former trial.\n\u201cIn considering a motion to dismiss the action under the statute, we are merely to ascertain whether there is any evidence to sustain the indictment; and in deciding the question we must not forget that the State is entitled to the most favorable interpretation of the circumstances and of all inferences that may fairly be drawn from them. S. v. Carlson, 171 N. C., 818; S. v. Rountree, 181 N. C., 535. It is not the province of this Court to weigh the testimony and determine what the verdict should have been, but only to say whether there was any evidence for the jury to consider; if there was, the jury alone could determine its weight. S. v. Cooke, 176 N. C., 731.\u201d S. v. Carr, 196 N. C., 129, 144 S. E., 698.\nOn the record we find\nNo error.",
        "type": "majority",
        "author": "Schencx, J."
      }
    ],
    "attorneys": [
      "Attorney-General McMullan and Assistant Attorneys-General Bruton and Patton for the State.",
      "M. B. Simpson for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. E. L. MANN.\n(Filed 26 February, 1941.)\n1. Perjury \u00a7 3 \u2014 Evidence that defendant \u201ctestified\u201d on former trial, together with transcript stating he was \u201cduly sworn,\u201d held sufficient for jury on question of whether false statement was under oath.\nWhile testimony in a prosecution for perjury that defendant \u201ctestified\u201d to the material, false statement on the former trial, alone, is insufficient proof that defendant\u2019s statement on the former trial was under oath, where in addition thereto, the transcription of his testimony, properly identified by the court reporter and admitted in evidence, contains the statement that defendant \u201cbeing duly sworn\u201d testified to the false statement, the evidence, in the absence of inquiry by defendant of the reporter as to what was meant by the phrase \u201cbeing duly sworn,\u201d is sufficient to be submitted to the jury upon the question of whether defendant\u2019s testimony on the former trial was under oath.\n2. Criminal law \u00a7 52b\u2014\nUpon motion to nonsuit in a criminal prosecution, the evidence will be considered in the light most favorable to the State, and the court must determine only whether there is any evidence to sustain the indictment, the credibility and weight of the evidence being within the exclusive province of the jury. C. S., 4643.\nAppeal by defendant from Harris, J., at October Term, 1940, of Dabe.\nTbe defendant was tried and convicted upon a bill of indictment charging that he committed perjury in the trial of the case of \u201cState of North Carolina against E. L. Mann\u201d in Superior Court of Dare County by falsely asserting on oath or solemn affirmation that Mrs. W. W. Midgette was driving and operating an automobile belonging to the defendant at the time it collided with an automobile operated by M. C. Tillett on Highway No. 34, on 18 May, 1939, at which time it was charged the defendant was driving and operating such automobile while intoxicated.\nWhen the State had produced its evidence and rested its case the defendant moved to dismiss the action or for a judgment of nonsuit. The motion was refused and defendant excepted. C. S., 4643. The defendant offered no evidence.\nThe jury returned a verdict of guilty. From a judgment of imprisonment predicated upon the verdict, the defendant appealed to the Supreme Court, assigning as error the refusal of the court to sustain his motion for judgment of nonsuit.\nAttorney-General McMullan and Assistant Attorneys-General Bruton and Patton for the State.\nM. B. Simpson for defendant."
  },
  "file_name": "0212-01",
  "first_page_order": 254,
  "last_page_order": 256
}