#### The State v. James Dodd.

1 I From Rutherford. J

Indictment charged, that Defendant falsely, wittingly, corruptly, Ac. swore to certain facts before the Grand Jury upon a bill of indictment, but did not charge, how or in what way, the facts thus sworn to, had a bearing- upon the allegations of the indictment, nor that they were material to, or connected with, the question then under consideration by the Grand Jury. Judgment arrested.

In the absence of positive acts of the Legislature, there is no criterion by which an act can be ascertained to'be criminal, but that of its being against the interest of the State. A false oath is injurious to the State or to an individual, only where it tends to prevent right; therefore to constitute perjury, it must be to some material fact tending to injure some person.

The indictment charged, “ that at a Superior Court of “ Law, opened and held for the County of Rutherford, by “ the Honorable Duncan Cameron, one of the Judges of u the Superior Courts of Law and Equity, in and for the “ State of North-Carolina, and County aforesaid, on the “ third Monday after the fourth Monday of March, eigh- “ teen hundred and sixteen, there was a bill of indictment “ preferred, and sent to the Grand Jury of said Court, in “ behalf of the State, against Joseph Hamilton and Noble “ Hamilton, for a charge of assault and battery, alleged to “ have been committed, before that time, upon the body of “ one-James Dodd, by the aforesaid Joseph and Noble “Hamilton; and the aforesaid James Dodd was intro- “ duced as ¡a witness in behalf of the State, and was sworn “ in due form of law, before the Honorable Duncan Came- “ ron, Judge as aforesaid, (he the said Duncan Cameron, “ then and there having full and competent power and autlio-*227*e pity to administer an oath to the said James Dodd in that ££ behalf) upon the Holy Gospel of God, to speak the truth, ££ the whole truth, and nothing but the truth, to the Grand “ Jury aforesaid, touching and concerning what he the “ said James Dodd might know, of and concerning the “ charge, in the aforesaid bill of indictment contained, “ against the said Joseph and Noble Hamilton : and the “ Jurors aforesaid, upon their oath aforesaid, do further “ present, that the aforesaid James Dodd, being so sworn “ as aforesaid, and not having the fear of God before his ££ eyes, but being moved and seduced by the instigations of ££ the Devil, in the County aforesaid, at the term afore- <£ said last above mentioned, before the Court and Grand “ Jury aforesaid, by his own act and consent, and of his “ own most wicked and corrupt mind and disposition, did £t wilfully, wittingly, knowingly, wickedly, maliciously •'*' and corruptly, swear, depose and say, and give evidence “ to the Grand Jury aforesaid, upon his oath aforesaid, ££ (among other things) in substance and to the effect fol- “ lowing, that is to say, that he the said James Dodd did ei not, on the night that the assault and battery was charg- ££ ed by Mm to have been committed, by the said Joseph “ and Noble Hamilton on the body of him the said James ££ Dodd, see a negro woman Celia, a slave of Noble Ha- “ miltou, speak to her, or receive any tiling from her, and “ that he came to the place where he received the abuse, ££ on his lawful business, to receive money from Mrs. Ha- ££ milton, that she owed him, and that he did not know ££ any person was there until ho was knocked down : ££ Whereas, in truth and in fact, he the said James Dodd ££ did see a negro woman slave named Celia, the property ££ of Noble Hamilton, on the night and immediately before ££ the time that he, the said James Dodd, received the abuse £< from the said Joseph and Noble Hamilton, and whereas, ££ in truth and in fact, he the said James Dodd did receive £i from the said negro woman Celia, a large sum of money, 'i? to-wit, the sum of ten dollars, on the same night, and *228 a before the time that he the said James Dodd received the “ abuse from the said Joseph and Noble Hamilton \ and ci whereas, in truth and in fact, he the said James Dodd, “ on the night that he received the abuse, did not go to the “ place where he received it on his lawful business, nor to “ receive money which Mrs. Hamilton owed to him, but, “ in truth and in fact, he the said James Dodd did go to “ the place where he received the abuse, on the night that he received the same, and immediately before he received “ the same from the said Joseph and Noble Hamilton, for “ the express purpose, and none ■ other, of receiving the e< aforesaid ten dollars, from the said negro slave Celia, “ and did receive the same from her, he the said James “ Dodd, at the time of receiving* the same, well believing “ that the said ten dollars were feloniously stolen from the ee said Noble Hamilton : And so the Jurors aforesaid, upon (i their oath aforesaid, do say, that the aforesaid James “ Dodd, upon his oath aforesaid, before the Court and “ Grand Jury aforesaid, the said Duncan Cameron, Judge “ as aforesaid, then and there having competent power to “ administer said oath to the said James Dodd, in tliatbe- “ half, in the year and at the term aforesaid, in the County <e aforesaid, in manner and form aforesaid, by his own axt “ and consent, and of his own most wicked and corrupt “ mind and disposition, did wilfully, maliciously, witting- “ ly, knowingly, wickedly and corruptly, commit and “ swear a corrupt lie, to the great displeasure of Almighty “ God, and against the peace and dignity of the State.”

The Defendant was convicted, and the case was sent to this Court upon the question, whether any and what judgment should be rendered.

Henderson, Judge,

delivered the opinion of the Court:

The indictment charges a kind of quasi perjury, unknown in our laws, and entirely inconsistent with our ideas of criminal acts. For, in the absence of positive acts of the Legislature, where the will of the Legislature *229stands for tlie reason of the law, we know of no rule or criterion by which an act can be ascertained to be criminal, but that of its being against the interest of the State. A false oath is only injurious to the State, or even to an individual, where it tends to prevent right. Therefore, to constitute perjury, it must be to some material fact tending to injure some person. If it bo entirely immaterial, it cannot affect any one: it wants a necessary ingredient to constitute it an offence against society, and that is, a possibility of injuring the community, or an individual of that community, in a manner which the good of the whole requires to be repressed. Apart from this consideration, it is not for Courts of Justice to inquire how the act stands in a moral or religious' point of view.

We do not say that the facts sworn to, if false, did not amount to perjury,* but that they are not so charged or averred as to shew that they constitute that crime. Without such charge or averment, the Court cannot value their tendency. The judgment must be arrested.