Opinion · Supreme Court of North Carolina
State v. . Valentine
State v. . Valentine, 29 N.C. 225 (N.C. 1847)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1847-06-05
- Topic
- general
Nash, J. 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 and Mary, authorising 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 t,o 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 tp be tried.” To what purpose but to perpetuate them, and why perpetuate, but tp provide for the contingency of the death of the witness, or to serve as a - check upon him, if palled ipto Court as a witness thereafter.
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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.
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 afullrecord 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.Page 164