#### STATE *vs.*ISAAC HARVELL.

The allegation of a bill of indictment, charging A and *fow*others with an assault on B, is not proved by the production of a record, which sets forth a • bill of indictment, charging A and *five*others with an assault on B.

INDICTMENT for PERJURY, tried before DioK, J., at the Fall Term, 1856, of Stanly Superior Court.

The bill charges that, at a certain term of Stanly Superior Court, held by Judge Bailey, “ á certain issue between the State and Conrad Crayton, John McEachen, Alexander Hun-nicut, Monroe Tow, and Isaac *W.*Crayton, in a certain bill of indictment of an assault and battery, wherein the State was plaintiff, and Conrad Crayton, and the others, (naming the same four others,) were charged with an assault and battery upon the person of Isaac Harvell, came on to be tried,” &c„ and that the perjury was committed in the trial of such issue.

The record produced to establish this former trial, sets out a trial before Judge Bailey, at the term stated, on an indictment against six persons — that is, against Conrad Crayton and five others, for an assault and battery on Isaac Harvell. The defendant’s counsel objected to this record as evidence of the allegation in the bill, on account of the variance. His Honor overruled the obj ection and admitted the evidence, for whiclKhe defendant’s counsel excepted.

Meh. The record of the indictment and trial before Judge Bailey was not sent to this Court, but it is described in the-Judge’s statement as above set out. He also speaks of it in this statement as *“*an indictment against Conrad Crayton and others.”

*56The defendant was found guilty. Judgment and appeal.

The Attorney General, *Bailey,*argued as follows:

It is submitted, that a joint plea, by several defendants, in an indictment, is, in law, a joint and several plea as to each ; but whether the trial shall be separate or not is a matter of sound discretion in the Court below. *State*v. *Smith,*2 Ire. 452. And if such an order was made, it must be presumed to be right, it being the exercise of a discretion from which there is no appeal. *State*v. *Lamon,*3 Hawks. 115, and various other cases. In the exercise of such a discretion the Superi- or Court exercises supreme powers. As, therefore, the Court had the power to order a separate trial in its discretion, and as such an order reconciles the apparent variance, the existence of such an order should *be presumed,*as it is a presumption of law, that as to manner and form of proceeding, Courts of original supreme criminal jurisdiction, act rightly. *Kim-brough's ease,*2 Dev. 431; *State*v. *Seaborn,*4Dev. 305 ; *State*v. *Ledford,*6 Ire. 5. By applying this presumption to the case before the Court, it will become manifest that there was no variance ; for, although six may have been originally indicted, yet the Court granted one of them a separate trial; and the indictment, therefore, alleged that the perjury was committed on the trial of the indictment against five. The two cases may have, very probably, been tried at the same time, and the jury having found the defendants guilty, the Court may have rendered judgment against all. It cannot be urged that the indictment should have stated the order for the separate trial, as it is only required by the Act of 1842, ch. 49, digested in Rev. Code, ch. 35, sec. 16, that the indictment should state the substance of the offence charged upon the defendant, without setting forth any part of any record or proceedings, and the indictment in this case is framed under that act; as, therefore, the indictment does not profess to state the whole proceedings in the first case, and as the law does not require it to be stated, it is submitted that no counter presumption *57can be made from its silence in this respect; andas tbe Court below bad tbe right, and might have ordered a second trial, which would cure the apparent variance, this Court should presume that the order was made; for it is not only the settled rule of this Court to affirm every judgment not seen to be erroneous, *(Thomas'v.*Alexander, 2 Dev. and Bat. 385,) but every judgment of th^ Superior Courts *is presumed*to be right, unless it appears to be erroneous. *Fleming*v. *Hal-eombe,*4 Ire. 268.

It is further submitted, that it does not clearly appear from the Judge’s statement, as a fact, that any variance existed, as it is only stated as a reason offered by counsel; but however that fact may be, it was the exclusive province of the Judge below to decide whether the record offered in evidence was the one described in the indictment; for the question of *nul Uel record*is a question of fact, not a question of law, to be tried as such by the Judge. *State*v. Isham, 3 Hawks 185.’ The determination of a question of fact, whether tried by a judge or jury, cannot be reversed; therefore, the decision of the Judge below, as to the fact of the record, is conclusive. *State*v. Baiford, 2 Dev. 214. By admitting the record to be read as proving the allegation of the indictment, his Honor necessarily adjudged it to-be the record recited. As this Court cannot re-examine, and consequently correct, this decision, even if erroneous; it becomes an immaterial en-quiry whether the record produced did, in *fact,*agree with that recited, as this Court will not do that indirectly which they refrain from doing directly, which is the thing aske,d of your Honors in the first point.

Fargan, for defendant.

Pearson, J.

The allegation of a bill of indictment, wherein the State was plaintiff, and Conrad Crayton and/bwr others, (naming them,) were charged with an assault and battery upon the body of Isaac Harvell* is not proved by the production of a record which sets out a bill of indictment, where*58in. tbe State is plaintiff, and Conrad Crayton and *five*others (naming them) are charged with an assault and battery upon the person of Isaac TIarvell. The variance in respect to the defendants is fatal. The indictment offered in evidence does not correspond with that which is described; and, in pleading, it is a familiar rule, that although a description is made with more particularity than need be, still all the particulars must be proven, and hence the rule applicable to pleadings differs from that applicable to deeds or wills; for, in the latter, if there be several particulars of description, one which does not correspond may be rejected, provided the identity of the thing can be sufficiently made out by the others; otherwise in pleading. The reason is, that pleadings may be instituted anew ; but in regard to deeds and wills, and the like, there is no chance for a second trial. *Miller*v. *Cherry,*in Equity at this term.

It was insisted by *Mr.*Bailey, that as the issue upon the plea of *nul Ucl record*was tried, by the Judge in the Court below, his decision of the fact was not the subject of review in this Court. Mr. Bailey failed to take the distinction between matter of law, which is involved in an issue, and matter of fact. "What amounts to a variance is clearly a question of law, and is the subject of review in this Court, as well when it arises upon an issue on the plea of *nul Uel record,*when the Judge *presents it to himself and decides it,*as when it arises upon an issue on the plea of *non estfactwn,*when the Judge gives it in charge to the jury. Our books furnish abundant illustration, e. g., the proceedings to charge bail, ca. sa. bonds, and the like.

Mr. Bailey also insisted that the fact that the bill of indictment offered in evidence was against Conrad Crayton and five others, did not appear, except by way of inference, from what the defendant’s counsel requested the Judge to decide, and his refusal.

The record of that indictment ought to have been sent as a part of the case ; but it is obvious that the fact was conceded to be as stated by the defendant’s counsel. The State, *59however, is precluded from taking any objection on this account, for the case sets out that the State introduced the record of *“*an indictment against Conrad Crayton and others,” without naming them, or saying how many. This certainly does not prove the allegation of the indictment against Conrad Crayton and four others, (naming them,) and makes a wider variance than that which the defendant’s counsel insisted upon. There is error. *Venire de novo.*

Pee Cueiam. ' Judgment reversed.