June Term, 1821.
1. The testimony of a witness taken down in writing by a magistrate cannot, on the trial of the same matter in court, be used as evidence in chief, particularly when the witness is present, but may be used to show contradictory statements made by him.
2. Misconduct on the part of a jury, to impeach their verdict, must be shown by other testimony than their own.
INDICTMENT for perjury, tried before Paxton, J., at the Spring Sessions, 1821, of SURRY. The perjury was charged to have been committed in making oath before a magistrate to obtain a warrant against one Smith for feloniously taking the horse of the defendant. The horse had been taken out of the defendant's stable after dark, and on the next day was in the possession of Smith, who was a constable, and had levied on the horse by virtue of executions in his hands against the defendant. Smith advertised the horse publicly for sale, and the defendant saw the advertisement. On the oath of the defendant, one Campbell, a magistrate, issued a warrant against Smith, on which he was apprehended, and, on examination by Campbell, discharged. The defendant was then cautioned by one Simonton of the danger of taking such oaths as he had taken. Some time afterwards, the defendant applied again to Campbell for a warrant against Smith. Campbell refused to issue it, advised the defendant to be cautious, and at the same time told him that he thought Smith committed a felony in taking the property in a clandestine manner, by night; but that, if he wished to be certain, it was advisable to go and consult the solicitor for the State in that circuit. The defendant went away, was absent two days, returned and told Campbell that the solicitor was not at home (as was the fact), but that he had consulted Mr. Connor, an attorney, (345) and again requested a warrant, which Campbell still refused to grant. He, however, wrote one for the defendant, and declined putting his signature to it. The defendant then applied with this warrant to another magistrate, Morrison, for his signature. Morrison at first refused, until the defendant assured him that he had consulted Mr. Connor, and procured him to write the warrant, to which he requested Morrison's signature. Morrison then took the oath of the defendant to the warrant, which was, in substance, the same with the former one, and signed it. On this evidence the jury found the defendant guilty, and a motion for a new trial was made, on two grounds — (1st) the examination of Smith, the prosecutor, taken down in writing, by the magistrate, on the return of the second warrant, was rejected by the court, on the ground that Smith was present and might be sworn; 2d misconduct on the part of the jury, as proved by their affidavits, which the court refused to hear, on the ground that their verdict must be impeached, if at all, by testimony other than their own.
The court refused the new trial, and passed sentence, from which defendant appealed.
The inferences to be drawn from the opinions of Campbell, the magistrate; from Connor, the attorney, and the attempt to consult the solicitor for the circuit, are all questions of fact, on the point whether the oath was corrupt; and these circumstances were all properly left to the jury. The examination of the defendant in the warrant and prosecutor here would have been proper evidence to impeach the testimony given by him on his trial, as any other statement made by the witness on the same subject would be, for the purpose of showing a contradiction; but it is not evidence in chief that is to show the truth of the facts contained in the examination; and it is more clearly so, if possible, when the witness himself was in court. In this (346) case it appears that it was offered as evidence in chief; it was therefore properly rejected. As to the misconduct of the jury, it has been long settled, and very properly, that evidence impeaching their verdict must not come from the jury, but must be shown by other testimony. We can therefore perceive no grounds for a new trial; and
It is ordered that the motion for a new trial be overruled, and that the Superior Court of law for Surry County proceed to judgment against the defendant agreeably to this opinion and according to law.
Cited: S. v. Taylor, 61 N.C. 513; S. v. Smallwood, 78 N.C. 563; S. v. Grady, 83 N.C. 646; S. v. Royal, 90 N.C. 755; Jones v. Parker, 97 N.C. 34; S. v. Bailey, 100 N.C. 533; S. v. Best, 111 N.C. 643, 644.