State v. . Webb

DeNNY, J. The defendant’s first assignment of error is to the failure of the court below to sustain his motion for judgment as of nonsuit. The evidence is conflicting but when considered in the light most favorable to the State, as it must be in passing upon such motion, we think it is sufficient to carry the case to the jury. S. v. Johnson, 226 N. C., 671, 40 S. E. (2d), 113; S. v. Murdoch, 225 N. C., 224, 34 S. E. (2d), 69; S. v. McMahan, 224 N. C., 476, 31 S. E. (2d), 357; S. v. Andrews, 216 N. C., 574, 6 S. E. (2d), 35; S. v. Adams, 213 N. C., 243, 195 S. E., 822. *307 In a prosecution for perjury the burden is upon the State to prove beyond a reasonable'doubt the falsity of the oath and this must be established by two witnesses or by one witness and adminicular circumstances sufficient to turn the scales against the defendant’s oath. S. v. Peters, 107 N. C., 876, 12 S. E., 74; S. v. Hawkins, 115 N. C., 712, 20 S. E., 623; S. v. Rhinehart, 209 N. C., 150, 183 S. E., 388; S. v. Hill, 223 N. C., 711, 28 S. E. (2d), 100. In connection with the institution of the proceeding to commit Mrs. Molly Wilson to a hospital for the mentally deranged, the defendant took an oath as charged in the bill of indictment to the effect that he had carefully observed Mrs. Wilson and believed her to be a mentally disordered person and a fit subject for admission into a hospital for mentally disordered persons. The oath was taken in a judicial proceeding before an officer competent to administer oaths in a matter within the jurisdiction of such officer. And the affidavit made by the defendant was material to the issue pending before the Clerk of the Superior Court as to the sanity or insanity of Mrs. Wilson. In addition to making the above affidavit the defendant got Dr. Sym-ington to sign an affidavit in which he swore that he had examined Mrs. Wilson and found her to be a fit subject for admission to a hospital for the mentally disordered. As a matter of fact Dr. Symington had not seen or examined Mrs. Wilson, according to his testimony, for three months prior-thereto. Moreover, the examination he had made of her was made at the instance of the defendant and his wife and such examination did not disclose sufficient evidence of mental disorder to warrant a commitment of Mrs. Wilson to a hospital for the mentally disordered; or at least Dr. Symington, according to his testimony, did not base his affidavit on his findings as to her mental condition at the time of such examination. He testified: “The reason that I signed the paper and recommended that she be accepted in the hospital, is there is insanity in the family, and when you find a person in the exceedingly nervous condition that she was, I consider it my duty as a physician to recommend that she be sent to Dix Hill (a hospital for the mentally disordered) for examination by a specialist and kept under observation for some time.” However, it is further disclosed by the record that the insanity in the family, to which this witness referred, was in the family of Mrs. Webb, wife of the defendant. Mrs. Wilson married into this family but there is no evidence to the effect that she is related to them by blood. Consequently we think the testimony of Dr. Symington robs his affidavit of any probative value, and, therefore, does not support the contention of the defendant that he acted in the matter in good faith. Furthermore, it is admitted that the affidavit of Dr. Wilcox was made in the presence of the defendant and his wife, at the request of Dr. Symington as a professional *308 courtesy. Dr. Wilcox testified tbat Dr. Symington told bim be bad examined ber (Mrs. Wilson) “and told ... as good a story of senile dementia as I bad beard in a long time, and I signed it.” While tbe defendant was not tried for subornation of perjury, it would seem tbat tbe manner in which these affidavits were procured tends to show bad faith on bis part. He was present when tbe affidavits were made and be knew tbe examinations, referred to therein, bad not been made. Tbe defendant insists, however, tbat be acted in good faith in having Mrs. Wilson committed to a hospital for mentally disordered persons and tbat this action is supported by tbe affidavits of tbe above licensed physicians, one of whom testified at tbe trial below tbat be still believes Mrs. Wilson is mentally disordered. But tbe State introduced tbe testimony of five witnesses to tbe effect tbat they bad known Mrs. Wilson over a long period of years and tbat she was a sane person. Tbe Assistant Superintendent of tbe State Hospital testified tbat during tbe two days Mrs. Wilson was committed to tbat institution “she did not show any abnormal symptoms of mental illness.” Further, tbe two licensed physicians upon whose affidavits tbe defendant relies to support bim in bis contention as to tbe mental condition of Mrs. Wilson on 20 March, 1947, by their own testimony in tbe trial below, we think tend to show bad faith on tbe part of tbe defendant rather than to sustain bis contention of good faith. Tbe testimony as disclosed on tbe record is sufficient to sustain the verdict rendered by tbe jury. Tbe third assignment of error is based on tbe ruling of tbe court in sustaining objection by tbe State to tbe following question propounded to tbe defendant: “Did you make this affidavit willfully, and corruptly?” Conceding tbe question was a proper one, tbe record fails to show what tbe witness would have answered. Therefore, the ruling must be upheld since no error is presented on tbe record. S. v. Utley, 223 N. C., 39, 25 S. E. (2d), 195; S. v. Thomas, 220 N. C., 34, 16 S. E. (2d), 399. We have carefully examined tbe remaining exceptions and they present no prejudicial error. In tbe trial below we find No error.