The indictment then assigned the perjury. Upon the trial, the Attorney General offered in evidence the record of the County Court, which shewed that a bill of indictment had been preferred in that Court, and found a true bill by the Grand Jury, against all the persons named in the bill as Defendants thereto, and also against Alafair Hathaway. Upon the trial docket of the County Court, the case stood, "The State v. James Cason, Major Harris, Robert Thomas, John Hathaway, Susannah Hathaway, Lethe Cason," and this docket in the proper column, shewed the plea of "not guilty." Upon the minute docket, where the verdict of the Jury was spread out, the case stood, "The State v. James Cason, Major Harris, Robert Thomas, John Hathaway, Susannah Hathaway, Lethe Hathaway, AlafairHathaway." The verdict was, "The Jury find the Defendants guilty."
It was objected, on behalf of the Defendant that the record produced did not support the allegation of the indictment, as the indictment charged that the perjury was committed upon the trial of an issue joined between the State and six persons, naming them; and the record produced, shewed that a trial had been had upon an issue joined between the said six persons, and that a seventh person had also been tried as a co-defendant *Page 180 with the said six; and it must be taken for granted, that he also pleaded; that, therefore, the indictment did not truly recite the record. The presiding Judge overruled the (234) objection; and the Defendant was convicted. A rule was obtained by the Defendant to shew cause why a new trial should not be granted: which rule was discharged by the Court, and the Defendant appealed. The indictment charges the Defendant with a perjury, committed on the trial of an issue joined between the State and six persons, who are named; and upon a reference to the trial docket of the Court wherein the issue was pending, and the trial took place, the names of the same six persons are found as parties to the issue, and the plea of "not guilty" is placed in the column appropriated for pleas. There is, therefore, no evidence, arising from the only docket where such evidence is sought for, that any plea was entered by the seventh person. And if the indictment had charged that the issue was joined between the State and seven persons, and the objection had been taken that only six had pleaded, the Attorney General could have placed but little reliance on the circumstances now set up to prove that seven had pleaded. It may be confidently concluded from those circumstances that seven were put upon their trial, and the whole found guilty; and if it were not known, that in point of fact, it is no uncommon thing for a man to be tried on an indictment, when through inadvertence or the hurry of business, no plea has been entered, the finding of the Jury might be taken as evidence of a plea having been entered. But the contrary has been decided in this Court upon more than one occasion, where a venirede novo has been awarded, after a verdict for the Defendant in one instance, and for the State in another, because the docket did not shew that a plea had been entered in either. The decision of the Judge in the Court below was unquestionably correct, and the rule for a new trial must be discharged. (235)