STATE of North Carolina
v.
Ora CHANEY.
No. 578.
Supreme Court of North Carolina.
January 12, 1962.*499 T. W. Bruton, Atty. Gen., Harry W. Mc-Galliard, Asst. Atty. Gen., for the State.
Haworth, Riggs, Kuhn & Haworth, High Point, for defendant.
DENNY, Justice.
The defendant assigns as error the failure of the trial court to sustain her motion for judgment as of nonsuit made at the close of the State's evidence and renewed at the close of all the evidence.
This assignment of error is based on the contention that the testimony of this defendant given at the trial of her son was not material to the issue then and there being tried.
G.S. § 14-209 reads as follows: "If any person shall willfully and corruptly commit perjury, on his oath or affirmation, in any suit, controversy, matter or cause, depending (sic) in any of the courts of the State, or in any deposition or affidavit taken pursuant to law, or in any oath or affirmation duly administered of or concerning any matter or thing whereof such person is lawfully required to be sworn or affirmed, every person so offending shall be guilty of a felony and shall be fined not exceeding one thousand dollars, and imprisoned in the county jail or State's prison not less than four months nor more than ten years."
It is well established that one of the essential elements of the crime of perjury is that the false statement must be material to an issue or point in question. State v. Cline, 150 N.C. 854, 64 S.E. 591; *500 State v. Hill, 224 N.C. 782, 32 S.E.2d 268; State v. Smith, 230 N.C. 198, 52 S.E.2d 348; State v. Lucas, 244 N.C. 53, 92 S.E.2d 401; State v. Arthur, 244 N.C. 582, 94 S.E.2d 646; State v. Lucas, 247 N.C. 208, 100 S.E.2d 366, 63 A.L.R. 2d 820.
In State v. Smith, supra, Devin, J., later C. J., said: "In accord with the common law definition and the statutes extending its application, it has been uniformly held that the elements essential to constitute perjury are substantially these: a false statement under oath, knowingly, wilfully and designedly made, in a proceeding in a court of competent jurisdiction, or concerning a matter wherein the affiant is required by law to be sworn, as to some matter material to the issue or point in question (citing numerous authorities). To constitute materiality essential to sustain a charge of perjury the false testimony must be so connected with the fact directly in issue as to have a legitimate tendency to prove or disprove such fact. * * *"
Applying this rule to the facts revealed by the record in this case, we do not think the evidence relied upon by the State to support its charge of perjury was material to the issue for decision in the former trial. The State concedes in its brief that the defendant's testimony set forth in the indictment would not have the effect of providing an alibi for her son. Furthermore, the State's evidence fixed the time of her son's theft at "close to 1:30 P.M." on 23 June 1960. The defendant in her testimony fixed the time her son picked her up at the cab stand as being between 2:00 and 2:15 p. m. The State's evidence fixed the driving time from the plant of Marsh Furniture Company on Kearns Street to the Yellow Top Cab Stand as an easy drive of about five minutes. The further fact that the State's evidence tended to disprove the presence of Bobby Ray Beeson with Bennie Raeford Chaney in the defendant's Buick automobile at any time during the afternoon of 23 June 1960, had no material bearing on the question at issue in the larceny trial of Bennie Raeford Chaney.
We hold that the defendant was entitled to have her motion for nonsuit allowed, and, accordingly, the judgment is
Reversed.