State v. . Lawson

Davis; J., (after stating the case). In State v. Dodd, 3 Mur., 226, Judge HeNdersON said: “A false oath is injurious to the State, or to an individual, when it tends to prevent right. * * * If it be entirety immaterial, it cannot affect any one. * * * It is not for Courts of justice to inquire how the act stands in a moral or religious point of view. It is the substance and effect of what the defendant swears that gives character to the oath. These must be material, and “tend to prevent right.” State v. Graves, Busb., 402. So far from negativing the facts charged to have been *762 falsely sworn to by the defendant on the trial in which the perjury is assigned, the evidence offered by the State — all the evidence — tends to show that the main or material fact sworn to by him was true, and the effect of what he swore to could not be substantially different from that which would be the result of the testimony of the impeaching witnesses, and that was, that there was a forcible trespass — that the defendant in this indictment was present, and that he did forbid the entering. The precise time of the entering, so far as it affected the guilt of the defendants in that case, was immaterial. State v Bobbitt, 70 N. C., 81. Jones, a witness-for the State, and one of the defendants in the indictment for the trespass, testified that “He first forbade us as a majority of us got into the fieldanother witness for the State said, “he forbade the Atkinsons coming into the house;” and J. A. Lawson, a witness for the defendant, testified to substantially the same facts, and that “ they (Atkinson and others) came afterwards, tore down the house and burnt it.” As soon as Lawson forbade the trespassers to enter, whether all or any of them had gotten into the field or not, and the;7 refused to get off, but continued with force to advance, they made forcible entry upon his premises against his will and his rights, and the material fact was, did they do this? All the evidence shows that they did, and that was the substance and effect of the defendant’s oaths. State v. Wilson, 94 N. C., 839. “ It was a fresh aggression to pass with a strong hand ” beyond the point at which the trespassers were when Lawson was present and forbidding it, and whether a majority, as one of the State’s witnesses said, or all, were in the field when he forbade the entry, was immaterial. State v. Talbot, 97 N. C., 494. The testimony shows that the defendant was present and did forbid the act of the trespassers, and the instruction *763 given by the Court, especially when connected with what-was said in refusing the instruction asked for, and which was-properly refused, was calculated to mislead the jury, and limit their consideration to the single question as to whether the defendant forbade the entry before the Atkinsons and others had gotten into the field. It was a failure correctly to “ declare and explain the law arising ” on the evidence given in the case, as required by §413 of The Code. State v. Matthews, 78 N. C., 537. The defendant is entitled to a new trial. Error.