Summary
admitting preliminary examination testimony of decedent where defendant had opportunity to cross-examine
Summary of this case from Davis v. WashingtonOpinion
(June Term, 1847.)
1. The deposition of a witness, taken in a criminal case before the examining magistrate, under the act of 1715, Rev. Stat., ch. 35, sec. 1, may be read in evidence on the trial of the prisoner if the witness is then dead.
2. In such a case the deposition may be used either in chief, by either party, if the witness is dead, or upon the cross-examination of the witness in court.
3. The proof of the deposition is usually but not necessarily by the magistrate or his clerk; but, in this State at least, there being no statutory direction as to the mode of proof, the probate must be a matter of sound discretion in the presiding judge, keeping in view the general principles of evidence, alike necessary to the safety of the accused and the due administration of the law.
4. Held, in this case that it appearing that the examining magistrate was necessarily absent in the discharge of high public duties, proof by the clerk of the Superior Court, to which the deposition had been returned according to law, that he was present when the deposition was taken, that the examination was written down by the magistrate himself, and that the deposition, returned to his office and offered in evidence, was in the proper handwriting of that magistrate, was sufficient to authorize the reading of the deposition.
5. A witness is not rendered incompetent by the commission of or by the conviction for any crime, but only by a judgment upon such conviction.
APPEAL from GUILFORD Spring Term, 1847; Manly, J.
Murder. On the trial the deposition of one Jacob Cotton, an accomplice, was offered in evidence by the prosecuting officer on behalf of the State, and objected to by the prisoner's counsel. It was taken by his Honor, Judge Pearson, under the act of 1712, Rev. Stat., ch. 35, sec. 1, and in the presence of the prisoner. Its reception in evidence was opposed "for the reason that it did not appear that it was the one taken down by Judge Pearson at the time; that it did not appear when it was written; that the witness Cotton had been found guilty of murder by the verdict of a jury; that the deposition was taken between the verdict and the judgment; that the judgment was rendered on the verdict (226) at the same term, and the witness shortly thereafter executed." The deposition was admitted upon such proof as the court thought sufficient. The prisoner was convicted, and from the judgment on such conviction appealed to the Supreme Court.
Attorney-General for the State.
No counsel for prisoner.
The first branch of the objection is as to the proof of the deposition. There is no direct provision in the act or in the statute of Philip Mary authorizing any use of the evidence when taken, or pointing out the mode how it is to be authenticated. Under the statute it has been the constant practice in the English courts to permit the deposition to be read in evidence after the death of the witness, and such has been the uniform practice in this State, and, indeed, both acts evidently look to such a use of it; for they require that the deposition taken according to their provision "shall be returned to the office of the court wherein the matter is to be tried." To what purpose but to perpetuate them, and why perpetuate but to provide for the contingency of the death of the witness, or to serve as a check upon him, if called into court as a witness thereafter? The depositions taken under the act are legal evidence, to be used either in chief, by either party, should the witness die, or upon the cross-examination of the witness in court. Westbeers' case, 1 Leach, 12; Smith's case, Russ. Ry., 339. In order, however, to its being used as evidence, it is usual, according to the English practice, to prove it either by the magistrate or his clerk, if living. It is to be remarked, this is but a matter of practice, and not a statutory provision, adopted by the courts as being the best mode of its authentication. Our magistrates have no other clerks but the individual whose pen they may use in writing down the deposition; and it is a matter of public law that at the time the prisoner had his trial Judge (227) Pearson was necessarily in another part of the State in discharge of his judicial duties. It could not then be proved in either of those modes, as his Honor wrote it himself. The probate, then, in this State must be a matter of sound discretion in the presiding judge, keeping in view the general principles of evidence alike necessary to the safety of the accused and the due administration of the law. In order to remove the objection raised and to identify the deposition, the clerk of the Superior Court of Rowan, "where the matter was to be tried," was examined, who stated "he was present when his Honor, Judge Pearson, examined the witness Cotton; that he wrote down the evidence as he examined him, and that the deposition and certificate were all in the proper handwriting of Judge Pearson, who afterwards delivered them to him, to file in his office." We think this evidence amply sufficient to prove and to identify the deposition.
But a further objection is raised, to wit, that at the time Cotton was examined he had been rendered incompetent as a witness by his previous conviction for murder, the deposition having been taken between the conviction and the judgment. This is the only important question raised in the case. Infamy of character does not render any one incompetent as a witness, nor does the commission of any crime, however atrocious, though acknowledged. 8 East, 97, 8. His guilt, to work that effect, must be legally ascertained by a conviction, and that followed by a judgment. The objection is a strictly legal one, and must be supported by strictly legal proof. This can only be done by the record, and that must show both a conviction and judgment; otherwise, it is incomplete, not a full record of the case. The judgment may have been arrested, and the conviction thereby rendered a nullity, as if it never had an existence. 8 East, 77; 8 Cowp., 8; Com. Dig., Title "Testimony," A. 5. It is not the conviction, then, but the judgment, which creates the disability. 2 Russ. on C., 597; Hawk. P. C., ch. 36, secs. 94, 95; 1 Phil. Ev., 31. (228)
We are of opinion that there is no error in the opinion of the judge who tried the cause. The deposition of the witness Cotton was properly taken and legally proved and identified, and at the time it was taken the witness was competent to give evidence.
PER CURIAM. No error.
Cited: S. v. Williams, 47 N.C. 268; S. v. Taylor, 61 N.C. 513; S. v. Thomas, 64 N.C. 76; S. v. Grady, 83 N.C. 646; S. v. Houston, 103 N.C. 389; S. v. Behrman, 114 N.C. 804; S. v. Staton, ibid., 815.