State v. Thomas

• Court: North Carolina Supreme Court
• Writing for the Court: PEARSON
• Citation: State v. Thomas, 64 N.C. 74 (N.C. 1870)
• Decision Date: 31 January 1870
• Parties: THE STATE v. JOHN W. THOMAS.

64 N.C. 74

THE STATE

v.JOHN W. THOMAS.

Supreme Court of North Carolina.

January Term, 1870.

*1 In all criminal prosecutions every man has a right to confront the accusers and witnesses with other witnesses; Therefore,

Entries in the course of business, upon the books of a Railroad Company, by one, at the time an agent of the Company, and still living, but absent from the State, are not competent evidence of the facts therein set forth, upon the trial of a third person for crime.

( State v. Valentine, 7 Ire. 225, cited and approved.)

PERJURY, tried before Tourgee, J., at Fall Term 1869, of GUILFORD Court.

In the course of the trial, the State offered in evidence the books of the North Carolina Railroad Company, at Thomasville station, in order to show that certain cotton, in regard to which it was alleged that the perjury had been committed, had been received by the defendant. It was shown that the entries were in the hand of one Lea, a former agent of the Company at that Station, and were in reference to the ordinary business transactions of the corporation to which they belong. The death of Lea was not shown, but that he was living a short time previously in the State of Missouri.

The defendant objected to their introduction. The objection was overruled, and the defendant excepted.

Verdict, Guilty; Rule for a new trial, &c.; Judgment, and Appeal.

Gorrell, for the appellant .

In order that entries in books, whether in the course of the business, or against the interest of the party making them, shall be competent evidence, such party must be dead: Price v. Earl Torrington, Salk. 690; Doe v. Turford, 3 Barn. & Ad. 890; Poole v. Dicas, 1 Bing. N. C. 649; Welch v. Barrett, 15 Mass. 380; Brewster v. Doon, 2 Hill (N. Y.) 537; Moore v. Andrews, 5 Porter (Ala.) 107; Kennedy v. Fairman, 1 Hay. 458; Higham v. Ridgeway 10 E. 109, (Smith, L. C. 2d, 183); Whitemarsh v. Gifford, 8 Barn. & Cress. 556; Speers v. Morris, 9 Bing. 687; Meddleton v. Milton, 10 Barn. & Cress. 299; Peck v. Gilmer, 4 D. & B. 249.Attorney-General, McCorkle and Scott, contra.

PEARSON, C. J.

For the purpose of showing that the cotton, in regard to which the perjury is charged to have been committed, was received by the defendant, the books of the North Carolina Rail Road Company at Thomasville station were offered in evidence. It was shown that the entries were in the handwriting of one Lea, a former agent of the company at said station, and were in reference to the ordinary business transactions of the corporation.

*2 “The death of Lea was not shown; but that he was living a short time previous in the State of Missouri.” The evidence was objected to by the defendant; objection overruled; and the defendant excepted. We must assume that the entries furnished material evidence, and that Lea was living and was absent from the State. We take occasion to say that it was the duty of his Honor to pass upon this fact, and to set it out as a fact, and the recital of the evidence from which he made the inference a fact, is superfluous and irregular.

It is a cherished rule of the common law, that in trials by jury the witnesses shall be openly examined and cross-examined, in the presence of the parties and of the jury. An exception is made in regard to dying declarations, but this exception is restricted to indictments for homicide against the party who caused the death, and is based on the maxim, “no man shall take advantage of his own wrong.” A relaxation of the rule is also made, so as to admit in evidence what a witness who is dead swore on a former trial before a jury, or a committing magistrate; upon the ground that the accused had the benefit of confronting the witness, and of a cross-examination, and is only...