STATE against COFFEY.
Where the tenor is un-be're^ted°& therecua! be variarn in a word or let-thereby to create a diff'erent word, jt is fatal. Rut where a statement of the substance & effect of an affidavit is sufficient, & nothing inore is pretended tobe done, evidence ofthe substance & effect is sufficient.
Defendant was tried on a charge of Perjury, the assignment of which, after the customary formal statements, was as follows, “ did depose, swear and make affi-¿av;t ;n writing (among other things} in substance and to . . ■ the effect following, that is to say, that he the said Jona• than Coffey did not know that a writ was returned against him, to the last County Court, in the above suit, meaning *273the suit of F. B. Smart ag únst him, and that therefore he did not speak to an attorney to defend, that he was not informed of the existence ot the writ until since last term, whereas in truth and in fact, he the said Jonathan Coffey did know that the writ was returned against him at August Term, one thousand eight hundred and twelve, and whereas in truth and in fact he was informed of the existence of the suit long before the judgment by default Was taken against him, and whereas in truth and in fact he the said Jonathan Coffey well knew that the writ had been duly executed on him befure the same was returned to the August County Court of Mecklenburg, and so &c.”
The affidavit which was read in evidence on the trial was as follows, u The Defendant maketh oath that he did not know that a writ was returned against him to the last County Court in the above case, and that tht refore he did not speak to any attorney to defend, that he was not informed of the existence of the suit until since last term, that he has a lawful and just defence against the said suit, that true it is the deputy sheriff mentioned to him something concerning said matter but that this deponent did not know it was a writ he had.” After the Defendant was found guilty, a new trial was moved for on the grounds that the Judge suffered the affidavit to be read to the Jury although it is different from the facts set' forth in the indictment; and because the affidavit described in the indictment varies from that adduced in evidence. UpoA this motion being overruled, the Defendant appealed to this Court. *
A. Henderson,for the appellant,
cited McNally 511, 513, 1 & 4 rule. Couaper 229. 2 Hawk. 239.
Gaston, for the State,
cited East’s C. L. 975-6. 1 Douglas 193, Rex v. May. Phillips on Evidence 159.
Seawell, J.
delivered the opinion of the Court.
*274The indictment contains two assignments of perjury; the first, that the Defendant swore that he did not know a writ ^was returned against him in the above suit, with the allegation that the same was false, and within the Defendant’s knowledge. The evidence offered is an affidavit in which the Defendant had sworn that he did not know that a writ was returned against him in the above case:—There is another assignment in the in* dictment, which it is unnecessary to notice. The Jury upon this evidence found the Defendant guilty, and a motion was made for a new trial upon this ground, that the affidavit was improperly admitted—and it has been insisted, that inasmuch as thp assignment and affidavit differ in a word, that therefore ft was not supported by the evidence—-apd the case from Qo-wper, has been relied on, where Lord Mansfield says the true distinction is,that Where the wprd mis-recited is sensible, then it is fatal J consider that case as good Law ; but it applieá only to cases where the tenor is undertaken tp be recited, ip which if the recital be variant, in a word or letter, so thereby tp create a different -word, it is fatal.—The pre* gent case is only pretended in the indictment to be a statement of the substance of the affidavit. And the whole body of authority maintains, that whenever a statement of the substance and effect be sufficient in the proceeding, |hat evidence of the substance and effect will also suffice ; it would be strange if it did not. Lord Holt, in the Queen v. Dr. Drake, by way of illustration, says, that where only the sense and meaning are professed to be selj put, that it may be done by translating it into Latin. The p&tóefluence is that the evidence was properly admitted, and the rule for a new trial must be discharged» *