Perjury. The solicitor, acting for the State, read in evidence a State's warrant and the proceedings of the committing magistrate *Page 186 thereon. The warrant was against Archibald M. Hemphill, Benjamin C. Hemphill, Jesse Watkins, and John R. Hemphill, charging them with an assault and battery on the present defendant. These parties were all arrested, except B. C. Churchill, and brought before one Padget, a justice of the peace, when the parties were bound over, except Jesse Watkins, who was discharged. Some weeks afterwards Benjamin C. Hemphill was arrested and brought before the said Padget for examination, and bound over to court. The defendant was sworn on both examinations, and upon both occasions stated that "Archibald Hemphill struck him with an axe-helve." The defendant's counsel insisted that the proceedings before the said Padget did not correspond with the allegations of the bill of indictment, and that there was a fatal variance, because the bill of indictment charged that "an issue was joined and came on to be tried before the said Padget, wherein the State was plaintiff and Archibald Hemphill, John R. Hemphill, Benjamin Hemphill, and Jesse Watkins were defendants"; whereas it was contended that no such issue was joined or came on for trial, the proceedings being a mere examination before a committing magistrate, and if an issue was joined, it was an issue between the State and Archibald Hemphill, John R. Hemphill, and Jesse Watkins, and not between the State and these three and Benjamin Hemphill, who had not been arrested. Thereupon, the counsel for the defendant moved the court to instruct the jury to return a verdict of not guilty on account of the variance. The court reserved the question. Evidence was then given on the question of facts whether (249) Archibald had or had not struck the defendant with an axe-helve, or struck him at all. The issue was then submitted to the jury, who returned a verdict of "Guilty," subject to the opinion of the court upon the question reserved. The court, upon that question, was of opinion with the defendant, and a verdict of not guilty was directed to be entered. From this judgment the solicitor for the State appealed. The defendant was indicted for perjury. He pleaded "not guilty." By the verdict sent up it appears that the jury found a general record of guilty against the defendant. The judge, therefore, had either to pronounce the sentence of the law on motion or grant a new trial. The record then further states that the "question reserved coming on for consideration, the court was of opinion with the defendant, and a verdict of not guilty entered." The jury had not asked the advice of the court, in a special verdict, whether the defendant was guilty or not, or found a verdict subject to the opinion of the court upon any point of *Page 187 law reserved; they had found a general verdict of guilty. The judge ordered this verdict to be set aside. He had power to do that; but he had no power to pronounce that the defendant was not guilty in the face of the general verdict of the jury, upon the record, that he was guilty. That the jury intended to find a verdict of guilty subject to the opinion of the court as to the law arising upon those facts which are set forth in the case sent up here for our review, it is stated by the judge in the exception to be a fact; but that is a statement inconsistent with what the jury have pronounced by their general verdict. Even if the verdict of "guilty" had been expressed to be "subject to the opinion of the court" upon a point of law reserved, the court would only have had the power, if the opinion on that point was for the defendant, to set aside the verdict. There would be no authority to go another (250) step, and change the verdict from one that the defendant was guilty into one that he was not guilty. That can only be done when the verdict is in that respect special, that is, when in a certain event the defendant is found guilty by the jury, and it is added, "otherwise not guilty," or the like. But here, in the record, the verdict is in no degree conditional or dependent, but it is a general and absolute verdict of guilty, and the court has no power to do more than either proceed to sentence on it or set it aside and award a venire de novo or grant a new trial. The case now stands as if no trial had ever been had. The judgment must, therefore, be reversed and the case tried again.
PER CURIAM. Venire de novo.
Cited: S. v. Branner, 149 N.C. 562.