{
  "id": 2085455,
  "name": "STATE v. MATHEW DAVIS",
  "name_abbreviation": "State v. Davis",
  "decision_date": "1873-06",
  "docket_number": "",
  "first_page": "383",
  "last_page": "387",
  "citations": [
    {
      "type": "official",
      "cite": "69 N.C. 383"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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  "last_updated": "2023-07-14T20:27:51.762407+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. MATHEW DAVIS."
    ],
    "opinions": [
      {
        "text": "Reade, J.\nOur statute declares that \u201clawful oaths for the discovery of truth and establishing right are necessary and highly conducive to good government, and being most solemn appeals to Almighty God. * * * * Such oaths ought to be taken and administered with the mtmost solemnity.\u201d This \u201c solemnity \u201d applies not only to the substance of the oath, but to the form and manner of iahiny it, and of administering it. And therefore the statute further provides that the Judge, or either person administering it, \u201cshall require the party sworn to lay his hand upon the holy evangelists of Ahninghty God, * * * * and after repeating the words, so help me Qod, shall kiss the holy gospels as a seal of confirmation to the said engagements.\u201d Rev. C. Oaths. After this manner every witness in North Carolina must be sworn. And a wilful violation of such an oath in a material matter is perjury, and no other is. This is the general rule. The only exception is \u201c when the person to be sworn shall be conscientiously scrupulous of taking a book oath in manner aforesaid, he shall be excused from laying his hands upon or touching the holy gospels * * * and he shall stand with his right hand lifted up towards heaven,\u201d &c. And Quakers and some others who have conscientious scruples about swearing at all, are permitted to \u201c affirm.\u201d\nIf the usual form of oaths upon the holy evangelists is dispensed with., and an \u201c appeal \u201d or \u201c affirmation \u201d is substituted, it must appear that the person sworn had conscientious scruples; else the \u201c appeal \u201d or \u201c affirmation \u201d is invalid.\nThis much has been said because of the general and solemn importance of the subject, and because his Honor seemed to be of the opinion that an oath valid for any one person was valid for every other person.\nThe indictment charged that the defendant was sworn \u201c upon the holy gospels.\u201d His Honor charged the jury that they might convict him \u201cif he was sworn in any manner known to the law.\u201d We are to take it that this meant that they might convict him if it appeared that he was not sworn upon the holy gospels as the indictment charged, but was affirmed as a Quaker. And this is clearly in violation of the rale that the probata and allegata must agree. We suppose that his Honor\u2019s idea was that as falsehood was the substance of the offense, the form of the oath was immaterial. But experience, precedents and practice all teach the value \u25a0of certainty and precision in legal and especially in criminal proceedings. If one is charged with killing another with poison it will not be sufficient to prove that he killed him with a sword.\nThe following is a quotation from 2 Chit. Cr. L. p. 309: \"And if he were sworn twice, first -in the usual form, and \u25a0afterwards after his own method, to state that he was sworn \u2022on the holy gospels of God will suffice, though had he been sworn only in the latter way the variance would have been fatal.\u201d\nSo in our case he is charged with having been sworn upon \u25a0\u2022the holy gospels, and as we are to take it from the charge it appeared that he was not sworn as charged, but in some other way. The variance is fatal.\nThere are several other points in the case, but as this entitles the defendant to another trial, it is not necessary to notice them.\nThere is error.\nPer Curiam. Venire de novo.",
        "type": "majority",
        "author": "Reade, J."
      }
    ],
    "attorneys": [
      "Attorney General Hargrove and L. M. Scott for the State:"
    ],
    "corrections": "",
    "head_matter": "STATE v. MATHEW DAVIS.\nIn an indictment for perjury, where the defendant is charged with having been sworn \u201con the Holy Gospels of God,\u201d and it appeared that he was not sworn as charged, such variance is fatal and will entitle the defendant to a new trial.\nIndictment for perjury tried before Tourgee, J., at the Spring Term, 1873, of the Superior Court of Randolph county.\nDefendant was charged with having, in a suit between Hood, Bonbright & Co,, plaintiffs, and Welborne Lassiter, defendant, tried in the Superior Court of Randolph county before his Honor, Judge Tourgee, at Pall Term, 1871, \u201c being then and there duly sworn upon the Holy Gospel of God to speak the truth,\" &c., falsely, wickedly, wilfully and corruptly committed perjury, in swearing as to the attestation of a certain deed, which was a material point on the trial of the issue then joined.\nOn the trial much evidence was introduced both for the State and for the defendant, to the introduction of some of which the defendant objected. It is unnecessary, however, to a proper understanding of the opinion delivered, to notice the exceptions of the defendant to the evidence as the ease was decided in this Court upon one point: the alleged error in his Honor in charging the jury \u201c that it was not necessary for the State to prove that the defendant was sworn upon the Holy Gospel of God as charged in the bill of indictment ; that if they were satisfied that he was sworn in any manner known to the law it was sufficient.\u201d To this charge the defendant excepted.\nThe jury returned a verdict of guilty. Motion by defendant to arrest the judgment for error in allowing certain evidence to be given to the jury, and also for error in the charge of his Honor as to the above, and other points needless to mention. Motion refused. Judgment and appeal.\nNo counsel for defendant in this Court.\nAttorney General Hargrove and L. M. Scott for the State:\n1. The transcript discloses that \u201c the defendant was sworn and examined as a witness,\u201d &c. The form and manner of the oath was not shown. .\nIt is admitted that if it had appeared in evidence that he was sworn with \u201c up-lifted hands,\u201d or was a Quaker, it having been charged that he was sworn on the \u201c Holy Gospels,\u201d the variance would have been fatal.\nBut, in Rex v. Rowley, Ky. and Mood. N. P. C. 302, (found also in 24 Eng. Com. Law,) it is held, \u201c that proofs that the defendant was sworn and examined as a witness, supports an averment, that he was sworn on the holy gospels, that being the ordinary mode of swearing in England.\u201d See also Rex v. McCariher, Peake\u2019s C. 155.\nII. The ordinary mode of swearing in this State is upon the holy gospels. Rev. Code, chap. 76, sec. 1. It was sufficient for the State to show that the defendant was \u201c sworn and examined.\u201d If sworn in the exceptional form, it was proper matter of defense."
  },
  "file_name": "0383-01",
  "first_page_order": 391,
  "last_page_order": 395
}