Where the allegation is that perjury was committed in an action wherein "one H was plaintiff and Thomas R. Robertson was defendant," and the proof is that "Thomas Robertson" was defendant, and there is evidence of the identity of "Thomas Robertson" and Thomas R. Robertson, the variance is not fatal, it being for the jury to determine the identity of the two persons. Hester, 122-1047.

ARREST OF JUDGMENT.-Where the indictment charges that the oath was administered, “the said B, justice of the peace, as aforesaid, having then and there competent authority and power to administer the said oath to the said C G," and it is denied that the justice had jurisdiction of the action, a motion in arrest of judgment on the ground that the indictment failed to allege that the oath was taken before a court of competent jurisdiction, is properly overruled. Green, 100-419.

Where defendant is charged with perjury in swearing he did not execute a certain deed, and the jury find specially that he is guilty of perjury in denying his signature, the judgment must be arrested, since a deed may be executed without actual signing, as where one person signs another's name by direction, and a sealing and delivery takes place by the party whose name is so written. Avera, 4 (Taylor's Term Rep.), 669.

Where the assignment of perjury is that "Gatling did not interrupt the constable in driving the cattle to Gatling's house," and the words proved were that "Gatling did not assist in driving the cattle from the officer," the variance is fatal, since the words proved are not necessarily of the same meaning as those laid in the indictment. Bradley, 2—463.

Where the perjury assigned is that defendant swore a certain person had purchased a gun from another and the evidence is that such person offered to allow the other $15 for his gun to be credited on account and that the latter replied, "enough said," there is a variance. Groves, 44–402.

CHARGE. Where the perjury assigned consists in defendant's swearing on a trial for assault and battery on his wife that he had not beaten her on the day named in the warrant, and had not struck her but once in three years, and then for fun, and this is contradicted by proof that he did commit the assault on the day named in the warrant, and also assaulted her on other days, it is not error for the court to charge the jury "that the date in the warrant should be considered in connection with the testimony of the witnesses for the state, and as to the various assaults mentioned in the testimony for the purpose of determining whether the assault was actually committed as charged in the warrant." Swaim, 97-462.

FORMER ACQUITTAL.-Where defendant is acquitted on a charge of swearing falsely to an affidavit "with intention to continue a suit" he can not plead former acquittal to an indictment for swearing to the same affidavit "with intention to procure an attachment to issue" against a certain person for contempt. Williams, 4 (Tay. & Conf.), 528.

MATERIALITY.On trial for assault with a deadly weapon the question as to whether such weapon was in fact used is material, but how it was used is immaterial, and an indictment for perjury for falsely swearing on a former trial for assault with a deadly weapon that such a weapon was used need not state the particular manner in which the weapon was alleged to have been used. Murphy, 101–697.

Where the perjury consists in falsely swearing that a certain crop was reserved and excepted by parol in the sale of land, an exception that it could not be shown by parol that the crop was excepted; that such exception would be of no avail, and that the alleged false statement of defendant was, therefore, immaterial, can not be sustained. Growing crops are fructus industriales, and may be reserved by parol in the sale of land. Green, 100-419.

Where the witness testified on the trial of an indictment for larceny that an officer took from the possession of defendant therein certain marked coin by

which the witness was enabled to identify them as his property, the testimony was material, and if false constituted the crime of perjury. Hare, 95-682.

Where, on indictment for removing a crop, the defense was that defendant paid the assignee of the landlord, the testimony of the landlord that he made no assignment of the rent was material, and if false constituted perjury. Harris, 145-.

Sec. 793 (3248). For subornation of perjury.

In every indictment for subornation of perjury, or for corrupt bargaining or contracting with others to commit willful and corrupt perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, without setting forth the bill, answer, information, indictment, declaration or any part of any record or proceedings, and without setting forth the commission or authority of the court or person before whom the perjury was committed or was agreed or promised to be committed. Code, s. 1186; R. C., c. 35, s. 17; 1842, c. 49, s. 2.

Sec. 794 (3612). Court-martial.

If any person shall willfully and corruptly swear falsely before any court-martial, touching and concerning any matter or thing cognizable before such court-martial, he shall be liable to the pains and penalties of perjury.

Code, s. 3235; R. C., c. 70, s. 73; 1812, c. 828, s. 3.

Where perjury is charged to have been committed in an oath taken before a company court-martial, it is not necessary to produce the commission of the captain, parol proof of his acting as such is sufficient. Gregory, 6 (2 Murph.), 69.

Sec. 795 (3611). Before legislative committee.

If any person shall willfully and corruptly swear falsely to any fact material to the investigation of any matter before any committee of either house of the general assembly, he shall be subject to all the pains and penalties of willful and corrupt perjury, and, on conviction in the superior court of Wake county, shall be confined in the state's prison for the time prescribed by law for perjury.

Code, s. 2857; 1869-70, c. 5, s. 4.

Sec. 796 (3613). False oath to wrong a laborer.

If any contractor, stevedore or boss stevedore shall make any false oath or false representation with intent to wrong, cheat or defraud any laborer as contemplated in the provisions and purview of the chapter entitled Liens, he shall be guilty of a misdemeanor, and on conviction thereof shall be punished as is now prescribed by law for perjury.

1887, c. 145, s. 5.

Sec. 797 (3614). Insolvent debtor.

If any insolvent or imprisoned debtor take any oath prescribed in the chapter entitled Insolvent Debtors, falsely and corruptly, and upon indictment of perjury be convicted thereof, he shall suffer all the pains of perjury, and he shall never after have any of the benefits of that chapter, but may be sued and imprisoned as though he had never been discharged.

Code, s. 2964; R. C., c. 59, s. 25; 1793, c. 100, s. 10; 1868-9, c. 162, s. 23.

Sec. 798 (3615). Offense of.

If any person shall willfully and corruptly commit perjury, on his oath or affirmation, in any suit, controversy, matter or cause, depending in any of the courts of the state, or in any deposition or affidavit taken pursuant to law, or in any oath or affirmation duly administered of or concerning any matter or thing whereof such person is lawfully required to be sworn or affirmed, every person so offending shall be guilty of a misdemeanor and fined not exceeding one thousand dollars, and imprisoned in the county jail or state's prison not less than four months nor more than ten years.

Code, s. 1092; R. C., c. 34, s. 49; 1791, c. 338, s. 1.

Sec. 799 (3616). Subornation of.

If any person shall, by any means, procure another person to commit such willful and corrupt perjury as is mentioned in the preceding section, the person so offending shall be punished in like manner as the person committing the perjury.

Code, s. 1093; R. C., c. 34, s. 50; 1791, c. 338, s. 2.

Sec. 800 (3617). Trust for benefit of creditors; false oath.

If any creditor of the maker of a deed of trust for the benefit of creditors shall knowingly swear falsely in the statement of the amount claimed by him required by law to be filed with the trustee, he shall be guilty of a misdemeanor.

1893, c. 453, ss. 6, 7.

PETITION TO REHEAR.

Petitions to rehear are not allowable in criminal actions. Council, 129

511.

PHARMACISTS.

PHARMACISTS.

See also DRUGGISTS AND PHARMACISTS.

Sec. 801 (3649). Pharmacist compounding prescriptions without license. If any person, not being licensed as a pharmacist, shall compound, dispense or sell at retail any drug, medicine, poison or pharmaceutical preparation, either upon a physician's prescription or otherwise, and any person being the owner or manager of a drug store, pharmacy or other place of business, who shall cause or permit any one not licensed as a pharmacist to dispense, sell at retail or compound any drug, medicine, poison or physician's prescription contrary to the provisions of chapter ninety-five, subchapter Pharmacists, he shall be deemed guilty of a misdemeanor, and fined not less than twenty-five nor more than one hundred dollars.

1905, c. 108, s. 24.

Sec. 802 (3650). Pharmacist doing business without license.

If any person, not being licensed as a pharmacist, shall conduct or manage any drug store, pharmacy or other place of business for the compounding, dispensing or sale at retail of any drugs, medicines or poisons, or for the compounding of physicians' prescriptions contrary to the provisions of chapter ninety-five, subchapter Pharmacists, he shall be deemed guilty of a misdemeanor, and be fined not less than twenty-five nor more than one hundred dollars, and each week such drug store or pharmacy or other place of business is so unlawfully conducted shall be held to constitute a separate and distinct offense.

1905, c. 108, s. 23.

Sec. 803 (3651). Pharmacist not displaying license.

If any person, being the holder of a license or permit granted under the provisions of chapter ninety-five, sub-chapter Pharmacists, shall fail to expose such license or permit, or renewal thereof, in a conspicuous position in the place of business to which such permit or license relates, or in which the holder thereof is employed, contrary to the provisions of such sub-chapter, he shall be guilty of a misdemeanor, and fined not less than five nor more than twenty-five dollars, and each day that such license, permit, or renewal thereof, shall not be exposed shall be held to constitute a separate and distinct offense.

1905, c. 108, s. 26; 1897, c. 187, s. 6.

PHOSPHATE ROCK.

Sec. 804 (3744). Phosphate rock in rivers.

If any person shall dig, mine or remove any phosphate rock or deposit from any of the navigable waters of this state, except for the purpose of prospecting and discovering as allowed by law, he shall be guilty of a misdemeanor, and shall also forfeit and pay ten dollars per ton for every ton of phosphate rock or deposit so mined, dug or removed, one-half to the use of the state, and the other one-half to go to the informer.

Sec. 805 (3645). Medicine; practicing, without license.

If any person shall practice medicine or surgery in this state for fee or reward, without first having obtained license from the board of examiners of the medical society of North Carolina, he shall not only not be entitled to sue for or recover before any court any medical bill for services rendered in the practice of medicine or surgery, or any of the branches thereof, but shall also be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than twenty-five dollars, nor more than one hundred dollars, or imprisoned at the discretion of the court, for each and every offense: Provided, that this section shall not be construed to apply to women who pursue the vocation of a midwife: And, provided further, that this section shall not apply to any reputable physician or surgeon resident in a neighboring state coming into this state for consultation with a registered physician resident herein. But this proviso shall not apply to physicians resident in a neighboring state regularly practicing in this state: Provided, that this section shall not apply to physicians who have a diploma from a regular medical college and were practicing medicine and surgery in this state prior to the seventh day of March, one thousand eight hundred and eighty-five.

1885, c. 117, s. 2; 1885, c. 261; 1889, c. 181, ss. 1, 2.

EVIDENCE. It is sufficient to prove that defendant held himself out to the public as a physician or surgeon, and invited or solicited professional employment from any who might desire his services. Van Doran, 109—864.

STATUTE CONSTITUTIONAL.-This statute is not unconstitutional, as granting to physicians and surgeons of other states privileges that are not granted to citizens of this state, in violation of Const. N. C., art. 1, sec. 7, providing