#### The State v. John Witherow.

} From Rutherford.

On a conviction for perjury in Rutherford County, two reasons were assigned in arrest of judgment. 1st. That the indictment did not charge that the oath was taken in Rutherford County. 2d. Nor that the evidence was given to the Court, or the Court and Jury, hut to the Jury only.

The first reason overruled, for the indictment charges “ that he the said “ A. B. on the 16th April, in the year aforesaid, in the county aforesaid, cc came before the said C. D. Judge as aforesaid, and then and there “ before the said C. D. did take his corporal oath.” The part of the indictment immediately preceding, states that C. D. held the Court as Judge, at that term, in Rutherford County: the same County is inserted in tile caption of the indictment, and there is none other mentioned in any part of it. The words “ then and there” refer to the 16th April and to the County of Rutherford.

The second reason overruled, for the indictment charges that the oath was taken before the Judge, and the evidence was thereupon given to the Jurors. This is the proper way of stating the oath, 1st, Because evidence given was on an issue to be tried by a Jury. 2d. It is agreeable to the most approved forms of indictments for perjury committed on the trial of an issue.

The oath is taken before the Court, but the evidence is give to the Jury, and the crime consists in giving false evidence to them in a material point in issue.

This was an indictment for perjury, and so much of the indictment as relates to the points decided in this case was as follows, to-wit :

cc State of North-Carolina, ? Superior Court of Law, third Monday after “ Rutherford County, 5 the fourth Monday of September, 1817v

“ The Jurors for the State, upon their oath present, that at a Superior “ Court of Law opened and held for the County of Rutherford, on the “ third Monday after the fourth Monday of March, in the year of our Lord “ one thousand eight hundred and sixteen, there was a case which came “ oil to be tried between the State of North-Carolina and John Oliver, “ Plaintiffs, and Elijah Patton, Defendant, in an action of debt to recover “ the penalty of forty pounds of the said Defendant, for having’ loaned a “ sum of forty dollars by said Defendant, to one John Witherow, and for “ having received more than the legal interest thereon by the said Elijah “ Patton from the said John Witherow; and the said Elijah Patton before *154“ the term last above mentioned, did plead that he owed nothing to the Plaintiffs in said suit: Whereupon the same issue came on to be tried « tjle term ]ast ak0ye mentioned, on the sixteenth day of April, in the “ year our ^01'^ 0Ile ^lousan<l eight hundred and sixteen aforesaid, “ before the Honorable Duncan Cameron, then being one of the Judges “ of the Superior Courts of Law in and for the State of North-Carolina, “ and then and there having competent power to hold said Superior Court “ in the County of Rutherford aforesaid, and to try causes therein, and “ also a Jury of goodand lawful men, then and there sworn to try the issue « aforesaid, between the said State of North-Carolina and John Oliver, « Plaintiffs, and the said Elijah Patton, Defendant. And the Jurors afore- “ said, upon their oath aforesaid, do further present, that John Witherow, « of the County of Rutherford, not having the fear of God before Ins eyes, « but being moved and seduced by the instigations of the Devil, and con«triving and intending unjustly to aggrieve the said Elijah Patton, the « Defendant above named, and wickedly to procure a verdict to go against “ him for the penalty of forty pounds aforesaid, on the issue so joined as « aforesaid, he the said John Witherow, on the sixteenth day of April, in. “ the year aforesaid, in the County aforesaid, came before the said Duncan “ Cameron, Judge as aforesaid, and then and there before the said Duncan “ Cameron, he the said John Witherow, did take his corporal oath upon “ the Holy Gospel of God, to speak the truth, the whole truth, and nothing « but the truth, of and upon the premises in the said issue so joined as “ aforesaid, the said Duncan Cameron, Judge as aforesaid, then and there “ having competent power and authority to administer said oath to the “ said John Witherow in that behalf, and the said John Witherow so being “ sworn as aforesaid, falsely, corruptly, wilfully, wittingly, knowingly and “ maliciously, did say, depose and give in evidence to the Jurors of the “ said Jury, so as aforesaid taken between Hie parties aforesaid, in sub- “ stance and to the effect following, &c.”

The Defendant was convicted, and two reasons were assigned in arrest of judgment. 1st. That it is not stated that the oath was taken in Rutherford County. 2d. That-it is not charged that the evidence was given to the Court, or to the Court and Jury, but to the Jury only. These reasons were overruled, and the Defendant appealed.

Taylor, Chief-Justice,

delivered the opinion of the Court:

The first reason is answered by tbe statement in the indictment, which charges the Defendant with taking* the oath, « he the said John Witherow, on the 16th day of *155 <{ April, in the year aforesaid, in the County aforesaid, “ came before the said Duncan Cameron, Judge as afore-Si said, and then and there before the said Duncan Came-s< ron, he the said John Withcrow, did take his corporal (i oath, &c.” The part of the indictment immediately preceding, states that the same Judge held the Court that term in Rutherford County : the same County is inserted in the caption of the indictment, and there is none other mentioned in any part of it. The words “ then and there,” must consequently refer to the 16th day of April and to the County of Rutherford.

With respect to the second reason: the indictment, after stating that the oath was taken before the Judge, he having competent power to administer the same, proceeds to charge that the Defendant did depose and give evidence to the Jurors. This way of stating the oath is the proper one; 1st. Because the evidence given was on an issue joined between the parties in the suit; and it is called evidence, because thereby the point in issue is to be made evident to the Jury.* 2d. It is agreeable to the most approved forms of indictments for perjury committed on the trial of an issue. The oath is taken before the Court, but the evidence is given to the Jury ; and the crime consists in giving false evidence to them in a material point in issue. It is the exclusive province of the Jury to deckle upon the facts in issue, and therefore the evidence is given to them to enable them to decide. Whence it follows, that the charge in the indictment is true in point of fact, mi well as technically correct.† The reasons in arrest must be overruled.

*

1 Inst. 283.

†

4 Wentw. 273.