State v. Valentine

• Citation: 29 N.C. 225,7 Ired. 225
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1847
• Parties: THE STATE v. DAVID VALENTINE.

7 Ired. 225

29 N.C. 225

THE STATE

v.DAVID VALENTINE.

Supreme Court of North Carolina.

June Term, 1847.

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.

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.

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.

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 hand writing of that magistrate--was sufficient to authorize the reading of the deposition.

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 the Superior Court of Law of Guilford County, at the Spring Term, 1847, his Honor Judge MANLY presiding.

The prisoner is indicted for 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. c. 35, s. 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, 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 in this Court for the prisoner.

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 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...