The defendant was convicted, and moved in arrest of judgment because the bill did not charge the offense to have been feloniously (765) committed. The indictment was as follows: "The jurors for the State, upon their oaths, present that James Shaw, of Columbus County, did unlawfully commit perjury upon the trial of an action in justice's court before A. F. Toon, a justice of the peace in Columbus County and Whiteville Township, wherein the State of North Carolina was plaintiff and James Shaw and John Field and others were defendants, by falsely asserting on oath that he was not present at and did not attempt to assist and did not assist in an attempt to rescue B.L. Jones from the jail of Columbus County on or about 3 June, 1894, for which offense the said defendant stood then charged, knowing the said statement or statements to be false, or being ignorant whether or not said statements were true; contrary to the form of the statute," etc.
The motion in arrest of judgment was sustained, and the State appealed. Since all criminal offenses punishable with death or imprisonment in a State prison were by statute (Laws 1891, ch. 205) declared felonies, indictments wherein there has been a failure to use the word "feloniously," as characterizing the charged in the latter class of cases, have been declared fatally defective. S. v. Wilson, 116 N.C. 979; S. v. Skidmore,109 N.C. 795.
Whatever force there might be in the suggestion of the Attorney-General that section 1189 of The Code renders it unnecessary to embody in the charge what it is not material to prove, if it had been made before the latter statute had been so often construed, it is now our (766) duty to adhere to our decisions.
There was no error in sustaining the motion in arrest, and the judgment of the court below is
Affirmed.
Cited: S. v. Harris, 145 N.C. 458; S. v. Holder, 153 N.C. 608; S. v.Hyman, 164 N.C. 413.