Appeal by the State from Mills, Judge. Order entered 10 June 1981 in Superior Court, Forsyth County. Heard in the Court of Appeals 9 March 1982.
Clark, Judge. Judges Arnold and Webb concur.
The State challenges the trial court's ruling that the Superior Court of Forsyth County is without jurisdiction to try this case. G.S. 7A-271 and 7A-272 provide that the district court has exclusive and original jurisdiction over trials in all criminal actions below the grade of felony, with several exceptions not here in issue, and that the superior court has exclusive and original jurisdiction over trials of all felony actions.
Perjury and subornation of perjury are felonies pursuant to G.S. 14-209 and 14-210. Defendant argues that these are the only offenses concerning perjury in North Carolina and asserts that solicitation of perjury as it existed at common law no longer exists, having been supplanted by G.S. 14-210. However, subornation of perjury requires that the State prove two elements: the commission of perjury by the person suborned and the willful procurement or inducement of that person by the suborner. State v. McBride, 15 N.C. App. 742, 190 S.E.2d 658 (1972). Defendant would have us hold that the unsuccessful attempt to suborn perjury is not punishable as a crime. Although we find no North Carolina case law on this point, we agree with the following statement found in 60 Am. Jur. 2d Perjury § 68 at 1008 (1972):
"A futile attempt to induce a witness to commit perjury is a crime, being an act done with the intention of preventing the due course of justice. In order to constitute the offense, the act of the accused must be such that it would have resulted in subornation of perjury on his part and perjury on the part of the person attempted to be suborned, if that person had committed the act that the accused endeavored to have him perform."
Defendant in this case was charged in the indictment in pertinent part as follows:
". . . [Defendant] unlawfully and wilfully did feloniously[,] infamously, and in secret and malice, and with deceit and intent to defraud, did [ sic ] corruptly solicit Jeff Cecil to commit the infamous crime of Perjury by corruptly soliciting the said Jeff Cecil to make a false statement of a material fact under oath, . . ."
The State argues that the solicitation to commit perjury constitutes a felony and is properly within the jurisdiction of the superior court.
Solicitation to commit a felony was a misdemeanor at common law. Perkins, Criminal Law 583 (2d ed. 1969). However, G.S. 14-3(b) states: "If a misdemeanor offense . . . be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender shall, . . . be guilty of a felony . . . ."
The courts of this State have held that attempts to commit a felony are infamous crimes. See State v. Harward, 264 N.C. 746, 142 S.E.2d 691 (1965) (attempt to commit crime against nature); State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964) (attempt to commit armed robbery); State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949) (attempt to commit burglary); State v. Page, 32 N.C. App. 478, 232 S.E.2d 460, disc. rev. denied, 292 N.C. 643, 235 S.E.2d 64 (1977) (attempt to obtain money by false pretenses). However, in State v. Tyner, 50 N.C. App. 206, 272 S.E.2d 626 (1980), disc. rev. denied, 302 N.C. 633, 280 S.E.2d 451 (1981), this Court held that solicitation to commit a crime against nature was not an "infamous misdemeanor" so as to be within the original jurisdiction of the superior court. Differentiating between "attempt" and "solicitation," the court stated:
"The gravamen of the offense of solicitation to commit a felony lies in counseling, enticing, or inducing another to commit a crime. (citation omitted) The offense of solicitation is complete with the act of solicitation, even though there never could be acquiescence in the scheme by the one solicited, ...