29 N.C. 225 | N.C. | 1847
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 *163 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 JudgePearson, 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,
