#### STATE v. STEPHEN BOBBITT.

A motion in arrest of judgment, rests on error upon the face of the record; and any statement of the case by counsel tends to confuse instead of aid the Court, who are oblige to examine the whole record, and pronounce judgment according to the very right and merits apparent thereon.

In an indictment for perjury, the question whether or not, one of the parties charged with an affray in the indictment, upon the trial of which the oath alleged as false was taken, retreated “ thirteen or twelve poaces” before he returned the blows of the other party, is a. material question, the “thirteen or twelve paces,” being mere sur-• plusage. So too, is the question whether not, one of said parties was stricken “two or three times,” before striking the other party, the' number of times being surplusage, where an averment of ablowwould have sufficed.

An. averment, that, the defendant “deposed and gave in evidence to the-jury wilfully and corruptly, ” amounts to a charge that he *more*wil-fully and corruptly.

A traverse in an indictment, pursuing the words of the defendant in taking the oath, is sufficient in an indictment for perjury.

INDICTMENT, Perjury, tried before Watts, J,at the Fall Term, 1873, of Wabeen Superior Court.

The offence was charged in the following indictment :

“ The jurors for the State upon their oath present, that at a. Superior Court, holden for the eouñty of Warren, on the second Monday after the second Monday of February, A. D. 1872, at *82the Court House, in Warren ton, in said county, before the Honorable William A. Moore, Judge of tbe said Court, one Wiley G. Coleman and oiie George Bobbitt, were in duo form oí law tried upon a certain indictment, then and there pending .•against them,,by a certain jury of the Court then and there duly sworn and taken between the State and the said Wiley G. Coleman aud George Bobbitt, in that behalf, for that they, the said Wiley G. Coleman and the said George Bobbitt, on the 1st day of January, A. IX 1872, with force and arms, at and in said county of Warren, did unlawfully assemble together to disturb the peace of the State, and so being then and there, unlawfully assembled together, did mutually assault and beat each other, and to, with and against each other, in a public place, did fight and make an affray, to the terror and disturbance of divers of citizens of the State, then and there being, in contempt of tbe State and its law, and against the peace - nd dignity of the State.

And the jurors aforesaid, upon their oath aforesaid, do further present, that upon the trial aforesaid, one Stephen Bobbitt, late of said county, did then and there appear as a witness for and on behalf of the State, against the said Wiley G. Coleman and George Bobbitt, and that the said Stephen Bobbitt did then and there, in open Court, in the Court House aforesaid, before the said Judge, take his corporal oath, and was duly sworn upon tbe Holy Gospel of God, to speak tbe truth .and the whole truth and nothing but the truth, touching the premises aforesaid, (the said Judge then and there having competent authority and power to administer the said oath to the said Stephen Bobbitt,) and it then and there became and was a material question upon the trial of the said Wiley G. Coleman and George Bobbitt, whether the said Wiley G. Coleman •did strike tbe said George Bobbitt, before the said George Bobbitt struck the said Wiley G. Coleman; and that it became •and was then and there another material question upon the .trial aforesaid, whether or not the said George Bobbitt retreated *83thirteen or twelve steps before he, the said George Bobbitt, struck the said "Wiley G-. Coleman.

And the jurors aforesaid, upon their oath aforesaid present, that the said Stephen Bobbitt being sworn as aforesaid, wiek-<edly devising and intending the due course of justice to pervert, and the said "Wiley G. Coleman to injure, then and there, to-wit; On the 28th day of February, A. D. 1872, in the county aforesaid, before the said Judge in open Court, in the Court House aforesaid, on the said trial, falsely, knowingly, wickedly, wilfully and corruptly, by Ms own act and consent, did depose and give in evidence to the jurors of said jury, so sworn and taken between the said State and the said "Wiley G. Coleman and the said George Bobbitt, to the effect, and in substance following: *“*Capt. Coleman, (meaning said Wiley G» Coleman,) struck George, (meaning said George Bobbitt,) two or three times before George struck him(meaning the said Wiley G. Coleman;) and in substance and to the effect following ; “ George, (meaning the said George Bobbitt,) give back (meaning said George retreated,) thirteen or twelve steps before he struck Capt. Coleman,” (meaning said Wiley G. Coleman,) whereas, in truth and in fact, said Wiley G. Coleman did not strike George Bobbitt two or three times, or one time, before said George Bobbitt struck said Wiley G. Coleman. And the j urors aforesaid upon their oaths aforesaid, do say, that the said Stephen Bobbitt, at and upon said trial, to wit ; on the 28th day of February, in the year last aforesaid, at and in the county aforesaid, in the said Court Honse, and before said Judge, (he, the said Judge, having then and there competent authority and power to administer the oath aforesaid, to said Stephen Bobbitt,) unlawfully and designedly did commit willful and corrupt perjury, contrary to the form of the statute, in such case made and provided, and against the peace and dignity of the State?’

On the trial, the jury found the defendant guilty ; and the counsel for the defendant, moved in arrest of judgment, upon *84tbe ground that the indictment was defective-in< the-following particulars, to wit;

1st. That it was not a material question, “Whether or not, said G-eorge Bobbitt retreated thirteen or twelve- steps” before the said George Bobbitt struck the said Wiley G. Coleman nor whether Coleman struck Bobbitt “ two or three ” times before Bobbitt struck him, as the bill states.

. 2d. The indictment does not charge that the defendant *swore*willfully and corruptly.

3d. That the traverse in the bill, of the statements of the-defendant, upon which the perjury is assigned, is in the language oí those statements, and therefore too broad, embracing: circuiustunees wholly immaterial, and for this reason is calculated to mislead the jury.

Iiis Honor allowed the motion, and ordered the judgment to be arrested; from which order, Solicitor Cox, on behalf of the State, appealed-

*Attorney General Hargrove,*for the State.

No counsel in this Court for defendant.

PeaesoN, C. J.

A motion in arrest of judgment, rests on error apparent upon the face of the record. It follows no statement of the case by the counsel is called for. Such statement tends to confuse and does not in any way aid the Court. We are obliged to examine the whole record and pronounce judgment according to the very right and merits-apparent on the record.

The first ground for the motion in arrest is, that the indictment avers, “ it became a material question whether Bobbitt retreated *thirteen*or *twel/oé*steps before he struck Coleman.” It is true, the indictment need only to have averred, that it became a material question whether Bobbitt *retreated,*before he struck Coleman ; but it is manifest, that the specification of “ thirteen or twelve steps ” is mere surplusage, and could in no wise prejudice the defendant. The same may be said of *85the averment as to striking “ *two*or *three*times/’ when an averment of a blow would have sufficed.

2. The indietment does-not charge that thedefendant *“swore,n*but it is dees eharge that he *“*deposed and and gave in evidence to the jury wilfully and corruptly.” This amounts, especially after verdict aúd under the statute to cure formal defects and prevent refinements, to a charge that he *swore*willfully and corruptly,

3. The traverse of the statements of the defendant, on which the perjury is assigned, might have been more concise, but the defendant cannot complain, because it pursues his own words in taking the oath.

Error.

Pee Curiase Judgment reversed.