| N.C. | Dec 5, 1840
The defendant, to sustain his plea of justification, offered proof of what the plaintiff swore, upon the trial of the indictment against him, the defendant, for the purpose of showing that the plaintiff swore falsely and corruptly. It was in proof that the defendant Cockerham had issued his warrant as justice of the peace against one George Southerland and Ann Chambers, charging them with fornication (310) and adultery; that he examined witnesses touching their offense, and caused them to enter into recognizances with sureties for their appearance at the next county court; that the warrant and recognizances were placed in the hands of one Benjamin M. Enlow, deputy sheriff, by said defendant, with directions to be delivered to the county attorney; that the plaintiff was one of the sureties of the said Southerland and Chambers; that afterwards, on the same day, the warrant and recognizances were burnt by the said Enlow, Southerland, and Chambers. A short time before they were burnt, an agreement was made to burn the papers, the plaintiff being present and not objecting.
The defendant was indicted for corruption in his office as a justice of the peace, in procuring and directing the papers to be burnt, etc. The defendant proved that the plaintiff swore upon the trial of this indictment that he, the defendant Cockerham, examined some of the witnesses before him on the trial of Southerland and Chambers, and, before he *238
concluded the examination of all the witnesses, stopped and said there was no evidence to bind them over to court. The plaintiff furthermore swore that he and the defendant, a few minutes after the trial, met under a tree, and the defendant then stated to him that there was no evidence to bind the parties; that it would become a county charge, and that the warrant and recognizances might be burnt. The defendant then offered proof that, when he stopped the examination of the witnesses aforesaid, he said he had sufficient proof to bind the parties, and he did bind them. The defendant's counsel then proposed to show that Cockerham commenced a prosecution against Enlow and Southerland for burning the papers, before the prosecution was commenced against him; and also proposed to show that the defendant was applied to, in a short time after the conversation with Jenkins, he (Jenkins) not being present, by one Angel, to permit the parties to compromise and stop the proceedings against Southerland and Chambers, and that he refused. This evidence was objected to, on the ground that the prosecution instituted by (311) the defendant was not against the plaintiff, and that the declaration proposed to be given in evidence was not in the presence of the plaintiff. The evidence was rejected by the court. His Honor then charged the jury that if the words contained in the plaintiff's declaration were spoken by the defendant to the plaintiff, and that within six months of the issuing of the writ, they should find a verdict for the plaintiff, unless they should be satisfied that the defendant had sustained his plea of justification; that if the plaintiff, in what he swore on the indictment, was mistaken, but not willfully and corruptly so, the plea was not sustained; but that, if the plaintiff had sworn falsely and corruptly, they should find for the defendant. There was a verdict for the plaintiff. A motion for a new trial was made by the defendant's counsel because of the rejection of proper testimony, and especially upon the ground of misdirection by the court. He contended that if the defendant proved that the plaintiff had sworn falsely, his plea of justification was sustained, and it was not necessary for him to prove that he swore corruptly and falsely, but that it was for the plaintiff to show that, although mistaken, he was not corrupt. The motion for a new trial was overruled and judgment rendered for the plaintiff from which the defendant appealed to the Supreme Court.
Three questions arise in this case: First, whether parol evidence could be received to show when the writ issued. We are of the opinion that the court was correct in overruling the objection to this *239
evidence. The act of Assembly directs the clerk to mark the day of issuing process; this is only directory under a penalty; there is nothing in the act confining the proof of the time to the mark of the clerk on the writ. It was a fact to be proved by the best evidence the nature of the case admitted. Boyden v. Odeneal,
PER CURIAM. No error.
(313)