State v. . Bordeaux

Ashe, J. (after slating the facts). The defendant moved to arrest the judgment upon two grounds : 1st, because the bill of indictment contained two assignments of perjury in one count of the indictment; and, 2nd, because the record did not show that the bill was returned into Court by the grand jury, and because his Honor refused to admit the testimony of the foreman to show that it was not so returned. The motion is not sustainable upon either ground. It is well settled by the authorities, that several assignments may be contained in one count of an indictment for perjury. Wharton lays it down that all the several particulars in which the prisoner swore falsely, may be embraced in one count, and proof of the falsity of any one, will sustain the count. Or. L., §2260; Regina v. Rhodes, 2 Lord Raymond, 886 ; State v. Hascall, 6 N. H. Rep., 352; 3 Greenleaf on Evidence, §193; Rex v. Leefe, 2 Camp., 134. The second ground for the arrest of the judgment is also untenable. Objection to a record for alleged defects, can only be taken by motion to quash, plea in abatement, demurrer, or motion in arrest of judgment. Whenever the objection requires proof to support it, it must be taken by a motion to quash, or plea in abatement, and they must be made or filed upon the arraignment and before the plea in bar. State v. Blackburn, 80 N. C., 474; Bishop Cr. Pro., §440. The demurrer and motion in arrest, are never taken except to some defect which appears upon the face of the record. The demurrer must be filed before the plea of not guilty, and the motion in arrest of judgment is never made until after verdict. *563 We believe a loose practice prevails in many of our Courts, with respect to the return of bills of indictment into Court- by ¡the grand jury. It is often the case, that the bills are carried into Court by the foreman alone, but this is a practice to be con•demned, because it is not the legal mode of proceeding. The law requires the grand jury should make their returns in a body, that the Court may see that they, as a body, assent to the returns made. State v. Cox, 6 Ired., 440. But if the defect in this record existed, as contended by the defendant, before the amendment made by his Honor, it might have been taken advantage of either by a motion to quash or a plea in abatement •or even by a motion in arrest of judgment, for a judgment can be arrested for some matter appearing, or that ought to appear, but does not, in the record. State v. Lanier, 90 N. C., 714. But his Honor had the power to amend the record so as to make it speak the truth, by the insertion of anything which may have been omitted. Bank v. McArthur, 82 N. C., 107. After the order made by his Honor in this case, the alleged defect in the record was cured. It was then a perfect record, and .a motion in arrest of the judgment can only be entertained when there is a defect appearing upon the face of the record. In the record, it is stated after the organization of the grand jury, “ it is presented in maimer and form following, that is to say,” &c., which, in this State, is held to be sufficient to show the presence of the grand jury in Court. State v. Gainus, 86 N. C., 632; State v. Haywood, 2 Nott. & McC., 312; Bishop Cr. Pro. §550; State v. Potter, Phil., 338; Roscoe Cr. Ev., 204. And although the amendment was made in this case, after the motion to arrest the judgment, the Court had the power to do so. In State v. Roberts, 2 Dev. & Bat., 540, it was held; that “it was competent for the Court, after a motion in arrest of judgment, to alter the record during the same term, by inserting into or striking from the minutes, whatever may be necessary to make it speak the truth ; and if by such alteration the grounds for the arrest be removed, upon an appeal nothing can be looked ¡to but the record in its complete state.” *564 And “ when the record states that the grand jury returned the-bill in open Court, it is not competent to disprove the recital in. the record on a motion in arrest of judgment, by aliunde testimony.” Turner v. The State, 9 Geo. Rep., 58. There is no error. Let this be certified to the Superior Court of Pender county, that further proceedings may be had according to law. No error. Affirmed..