June, 1830.

#### The State v. Elijah W. Kimbrough,

From Wake.

Secondary evidence of papers in the possession of a party to a cause is admitted,’ after notice to produce the originals, not because the originals are not produced, but because it is the best evidence ip the po^er, of the adverse party.

Thirf^rihiSple extends to criminal, as tvell as civil cases ; and the rule that no man is bound to criminate himself, only protects the accused in the possession of the originals, and prevents him from being compelled to produce them. IF, after notice, he objects to their production, the State has a right to prove their contents.

A notice to produce on a trial to be had “ this day,” is not confined to a trial on that day, but extends to a trial at any subsequent term.

■Whether persons, who have an interest in property expectant upon the . life-estate of another, are competent witnesses for the prosecution, in a capital charge against the tenant for life — Qu?

But if their interest does exclude them, it may, however remote and contingent, whether legal or equitable, be assigned or released, so as to render them competent.

A Judge may, in his discretion, adjourn a capital trial over until the next day, without the consent, and against the will of the prisoner.

In the record of an indictment, it is proper to state it as taken “ at a Superior Court of Law,” and not “ at a Superior Court of Law and Equity.”

In a record which states, that “ata Superior Court begun, See. present the Hon. A. B. Judge,” it will be intended that the Judge was present in his official character.

The manner in which inferior Courts exercise their powers roust appear upon the record of their proceedings — no intendment is made to support their acts ; but superior Courts are supposed to do every thing in the prescribed manner and form. Therefore, where it appeared on the record of the Superior Court, that a grand jury was impanneled, but it was not slated that they were sworn — upon a motion in arrest of judgment made in this Court, it was held sufficient.

The cases of the State v. Scott (1 IIaiv7cs 24) and the State v. Lewis (3 Jlatuhs 410) approved by IIehdebsox, Chief-Justice.

The record certified in this Court was as follows :

“ Be it remembered, that heretofore, to-wit, at a Su- “ perior Court of Law, begun and held for the county of “Wake, at, &e. on the first Monday after the fourth *432 a Monday of September, 1829 : present tiie Honorable il Wieeie P. MaNgum, Judge, W. R. H. Sheriff, and “ returns the venire facias to him directed, endorsed, &c. Upon balloting, the following persons are drawn to 61 serve as grand jurors, to-wit, William Peace, fore-a man, &c.

4‘ A bill of indictment was preferred before onr said grand jury, against Elijah W. Kimbrough, which.js.ip 44 the following words and figures, to-wit: ' ■

“ The Jurors for the State, upon their oath present, that Elijah W. Kimbrough, late, &c. not. having the fear, &c. but being moved, &c. on, See. in and upon one John Davis, in the peace, &.C. feloniously, wilfully, and of his malice aforethought, did make an assault, and that the said E. W. K. a certain rope about the neck of the said J. D. then and there feloniously, and wilfully, and of his malice atore, thought, did fix, tie and fasten, and that the said E. W. K- with the rope aforesaid, the said J. D. then and there feloniously, and wilfully, and of his malice aforethought, did drag, pull, choke, strangle, and dislocate the neck ; of which said dragging, pulling, choking, strangling, and dislocation of the neck, he, the said J. D. then and there instantly died. — And so the Jurors aforesaid, upon their oath aforesaid, do say, that the said E. W. K in, See. the said 3. D. in manner and form aforesaid feloniously, and wilfully, and of his malice aforethought, did kill and murder, against the peace, &c.

And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said E. W. K. with divers other persons, &c. afterwards -to wit, &c. not having the fear, Ike. in and upon the said J. O. in the peace, &e. feloniously, wilfully, and of their malice aforethought, did make an assault, and that the said E. IV. K. a certain rope about the neck of the said J. D. then and there feloniously, wilfully, and of his malice aforethought, did fix, tie and fasten ; and that the said E. W. K. by means of the said rope, the said J. D. then and there feloni-ously, wilfully, and of his malice aforethought, did drag, pull, choke and strangle ; and that the said E. W. K. with a certain drawn dag. ger, being part of a walking cane, &c. which he, the said E. W. K. in his right hand then and there bad and held, the said J. IJ. in and upon the forepart of the belly and divers other parts of the body of the said J. D. then and there feloniously, wilfully, and of his malice aforethought, did strike, thrust and penetrate, giving to the said J. D. then and there, with the dagger aforesaid, in and upon the aforesaid forepart of the belly and divers other parts of the body of the said J. JO. several mortal wounds of the breadth of one inch, and of the depth of six inches, as well of which pulling, dragging, choking & strangling, *433as also of the striking, thrusting and penetrating, &c. he, the said X D. from, &c. until, &c. did languish, &c. on which, See. the said X D. in, &c. of the pulling, dragging, choking and strangling, as well as of the mortal wound*, inflicted as aforesaid, died ; and that divers other persons, &c. And so the Jurors, &c. do further say, that the said E. TV K. and divers other persons, the said X. D. then and there in manner and form last aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder, against the peace, &c.

“ At Autumn term aforesaid of our said Court, the ie foregoing bill of indictment was returned into open ee Court, endorsed ‘ A true bill, fFm. Peace, foreman.”

The record then set forth the arraignment of the prisoner, and his plea of not guilty — the continuance of the cause — the opening of the ensuing term-* — “ present the Honorable James Martin, Judge,” and the impanncl-ing of a jury — that at a quarter past eight, P. M. his Honor suggested, as the examination of the testimony could not be closed that night, the propriety of an adjournment — that the Attorney-General and the Counsel for the prisoner not being able to agree upon the time of an adjournment, the latter objected, and insisted that the trial should then proceed — but that his Honor, notwith» standing the objection of the prisoner, adjourned the trial until the next day.

From the case attached to the record, it appeared, that two witnesses, Adolphus Davis and E%ra GiU,' were offered by the Attorney-General, and objected to by the Counsel for the prisoner, who, to sustain their objection, proved that Davis was a son of the deceased, and that Gill had married one of his daughters — that by a decree of the Supreme Court, made in a cause wherein the prisoner was Plaintiff, and the deceased and his wife Defendants CEquity Gases, vol. 1, p. 7"1) certain slaves were settled upon the prisoner for life, with a remainder, in case the prisoner should die without issue, to the children of the deceased — and further, that the prisoner was an unmarried man. To obviate this objection, the witnesses executed and delivered to tiie Clerk of the. Court, *434for )¡1C benefit of the other children of the deceased, a deed, whereby, “ in consideration of the love and affection which we have and bear unto the said, &c. (naming 0tber children) and for the further consideration of the sum of ten dollars, to us in hand paid, we have released, conveyed, assigned and quit claimed all our interest which we now have, or may, upon the happening of the contingency set forth in the said decree, hereafter have, in and to” the negroes, to the said children.

The Counsel for the prisoner still objected, that the witnesses were incompetent, by reason of their interest ¡ but his Honor holding that the witnesses liad either divested themselves of all interest in the. event — or that they had done all in their power so to divest themselves, overruled the objection, and the witnesses were examined.

One of the witnesses for the prosecution, in the course of his examination, stated that lie met a negro after night, and about the time the homicide was supposed to be committed. The Counsel for the prisoner proposed to examine him, as to the declarations of the negro made at that time. The Attorney-General objected to the question, and his Honor sustained the objection, because the declarations were apparently no part of the res gestae.

The Attorney-Genera! then proved, that the prisoner wms in possession of sundry papers, and liad been served with the following notice :

“ Wednesday morning, Oct. 7, 1829.

“ You are notified to produce on your trial this day the following papers, [describing them] or I shall give parol evidence of their contents. “ R. M. S. Jlttorney-General.”

Secondary evidence of the contents of the papers mentioned in the notice, was offered by the Attorney General. The Counsel for the prisoner objected to the sufficiency of the notice, because the. notice was to produce the papers on the 7th of October, 1829, and not generally, at the trial; and contended, that it was good only for the trial which was contemplated at the preceding term. *435But his Honor held the notice sufficient to authorize introiluction of secondary evidence, if the prisoner do-dined producing the originals. — The Counsel for the prisoner then objected to the secondary evidence, contending, that as the prisoner was not obliged to furnish evidence against himself, he was not- bound to produce the papers; and as the evidence offered was not the best, while the originals were in existence, it was not admissible. But bis Honor overruled the objection, and admitted the evidence.

The prisoner was convicted, and judgment of death being pronounced and execution awarded, thepiisoner appealed.

Seaivell & Badger, with whom was Deveremx,

argued in this Court upon the motion for a newr trial, and also in arrest of judgment. Every point taken by them is distinctly mentioned in the opinion below.

The Attorney General argued in support of the judgment of the Superior Court.

Henderson, Chief-Justice.

It is contended in the very able argument for the Defendant, that secondary evidence, such as was received in this case, abito’ admissible in civil, is inadmissible in criminal cases, because its admission impugns the principle of the common law, sanctioned by our bill of rights, that no man shall be compelled to give evidence against himself,

We believe that the whole of the argument is built upon mistaken grounds. Secondary evidence, such as was received in this case, is admitted, not because the adverse party, who is shown to lie in the possession of the primary evidence, refuses to produce it ¡ but because it is the best evidence in the possession of the prosecutor. It is the same thing to him, as if the primary evidence was actually destroyed. It is placed beyond his control, and it seems to be admitted, that if it. was actually des-*436froyed, such evidence is admissible. We cannot per-ceiv- a difference between the two cases: they are both . equally correct; both Founded on the same principle, that js> f|,af t¡„>. ¡ÍIW requires not imoossibilifies, and deems that which cannot rightfully be done, and which it would punish if done, the same as if it could not be done. The principle of the common law, sanctioned by the bill of rights, so far therefore, from operating against the admission of the evidence, operates in its favor. It protects (he Defendant in the possession of the'primary evidence ; and thereby places it in the same situation, as to the power which the State has of compelling its production. as if if were actually destroyed. The object of the notice is not io compel the party to produce the paper; for no such power is assumed, either directly or indirectly. by placing him under a disadvantage if he does not produce it. its object is, to enable the prisoner to protect himself against the falsity of the secondary evidence, which the law presumes may be false, as its very name imports. The copyist may make a mistake in transcribing ; he may be corrupt; so may the witnesses who give evidence of the contents. It is but reasonable, therefore, that the aroused should have an opportunity of correcting a falsity in the evidence, if one should exist. Notice is given for that purpose, and that alone ; ami whatever may be its form in common practice, it is in substance, a notification that the secondary evidence will be offered. Neither can we perceive, a difference, where the primary evidence is the corpus delicti, to use the Counsel’s own phrase, and where it is only evidence. Thus we think the point stands upon principle.

Upon authority it. seems to be well settled, that there is no difference in civil and criminal cases. (1 Starkie 358.) In Rex v. Watson, (2 T R 199,) Butter’s opinion is very clear and explicit. (McNally 236, 239. The People v. Holbrook, 13 Johns. 90. United States v. Britton, 2 Mason 464, 468.) Nov does the clause in the bin *437oi‘ rights detract from the weight of those authorities for that is but in affirmance of the common law. The dictum of Ld. Eldon, in the case of Parkkurst v. Lowten, (2 Swanston 213,)* is supposed to be in conflict \v th these authorities, if they should establish the admissibility of the evidence in this case. Every thing which Ld. Eldon says deserves consideration — even the droppings of his mind, as he holds communion with himself, iu arriving at his conclusions ; for what then falls from him seems to be of that character, rather than arguments addressed to the understandings of others. If his Lordship' means, that it yet remains to he decided in a Court of Law, that such evidence is admissible in a criminal case, where the Defendant lias possession of the deed, or rather that it does not subject him to have the contents proven, as if it were lost, I think very clearly his Lordship is mistaken ; and-I referió the authorities before cited, and many others to be found in the books. But as Ld. Eldon must have known of these decisions, [think that he was speaking of a Court of Equity, in which lie-was then sitting ; how he would deeide surh a case there, lie very plainly tells us in the next paragraph. This is *438no(; very doubtful, if the passage is read affirmatively, as '*• is P!'iute(^ ®llt ^ i'ead interrogatively, as I think it should be, there, cannot be a doubt. The latter reading may ¡)e (»i¥ectcd by transposing two words, it and is. It will then read,- “ is it a question •” and in confirmation of this reading, the sentence is closed with the mark, of interrogation. Bui be it as it may, his opinion cannot overrule so many, and so great authorities, supported too by reason and good sense.

The next objection is to the notice to produce (he pa* pers, as it is called. We think that in substance it is sufficient. No form is required. Any thing will do, coming from a proper source, which apprizes the prisoner, that secondary evidence will be offered on the trial. Here the. prisoner could not be misled by the notice pointing to the trial to be had in the then current term. He was fully apprized thereby, that whenever the trial should take place, either then, or at the next, or any ensuing term, the evidence would be offered.

The next objection is, that the witnesses, Davis and Gill, were interested, and should have been rejected.

It is admitted, that where property only is at. stake— where that only is the subject of controversy, it is the presumption of law, that interest in the event will, with must men, overcome the love of truth. The law therefore, acting upon that presumption, excludes all wiio are so interested, from being witnesses; as general rules are formed for majorities. But we are unwilling to acknowledge, that where life is at stake, where the injury inflicted by the perjury is a mur der, the most cold-blooded and deliberate, which can be imagined, that the law makes any such presumption. Although there are beings on whom interest (I mean pecuniary interest) would thus operate, they are rare exceptions to the nature of man, and general rules arc not predicated on exceptions. They are rather monsters than men. But we are glad that we are not left to the necessity of deciding this point: *439for we are all clearly of opinion, that the. witnesses were competent when sworn ; the release or assignment having destroyed or transferred their interest, if they had any. For the argument is entirely incomprehensible to ns, how an interest so remote and contingent, so much of a hare possibility, so much of a nothing, if I may so express it, that it cannot, by reason thereof, be released or assigned, should disqualify a witness. It is either an interest in property, recognized by law, or it is not. If it is of the former kind, it may be assigned ; if of the latter, it docs not disqualify. As to the objection that Gill's assignment being voluntary, that is, without consideration, does not bind or pass the property — it hinds him, and what effect it may have as to his wife, if she survives him, is immaterial; for it is his interest, and not her’s, that we are enquiring into. Whether the interest was legal or equitable, is unimportant; for, in either case, the Court which could declare that the interest disqualified, whether it was legal or equitable, was competent to declare that it was annulled or transferred. The case supposed by the Counsel does not arise, of a mere equity being transferred, leaving the legal estate in the witness; as whatever interest the witnesses iiad, whether equitable or legal, passed; as the instrument professed to pass the whole of it, and its form is sufficient for that purpose.

As to the declarations of the negro, ! can only repeat what I said in the case of the State v. Scott. (1 Hawks 24.)

The next objection is, that the Court adjourned in the evening over to the next morning (keeping the jury together) without the prisoner’s consent, and contrary to the. declared wishes of his Counsel. This is a mere matter of discretion in the Court, convenient and necessary for the exercise of its proper functions, in which the prisoner’s consent has nothing to do. It deprives him of no right, as in the case of the Kinlocks (Foster 16) : if it did. his consent would he necessary.

*440The motion, therefore, for a new trial must be overruled.

Various objections are made upon the record, in arrest wf judgment. It is objected, first, that the Court, before which the indictment is taken, is stated in the record to be a Superior Court of Law, and not a Superior Court of Law and Equity, as directed by the act of 1782. (Rev, e. ITT.) The Counsel himself has obviated the.objection, by, pointing to the act of ¡787' (Rev. c, 278, s. 4) which declares, that such Courts shall, in all law proceedings, be styled the Superior Court of Law, and in all equity proceedings, the Superior Court of Equity. Arid this is a'law proceeding.

It is next objected, that although it appears in the record of the opening of the Court, that the Honorable' White P. Mangum, Judge, was present, thus : “ Present the Honorable White P. Mangum,” yet it does not appear, that the Court was held by him ; that he might be present as a mere spectator. It requires no in-tendment to understand, that he was present in his official character. The record is made by the direction, and under the superintendence of the Judge, and it is Impossible to conceive why he should direct that entry to be made, unless it was to record his official presence. It does not appear^ that any other Judge was present, and we officially know, who are th,c Judges of the Superior Courts, and we know him to be one of them. This objection was taken and overruled in Lewis’ case. (8 Hawks 410.)

The next objection is, that it nowhere appears upon the record, that the grand jurors were sworn ; although it is slated, that the grand jurors upon their oath present. This is'the most serious objection taken to the record. If it were the record of the proceedings of an inferior Court, from authority it seems that it would be fatal. For no presumption is made in favor of the manner and form, in which such Courts dp their business, or ex*441ercise thc-ir jurisdiction. If mast appear apon fiie cord, how, and in what way, they exercised their powers. But it is said, that this rule is confined to the proceedings in inferior Courts, and that the rule as to superior Courts is, that unless the contrary expressly appeal’, it shall be intended lhat they do every thing in the manner and form prescribed by law. When it appears, therefore, that they have taken an indictment, it shall he intended, that it was duly taken : that it was taken by the requisite number of good and lawful men, duly drawn, sworn and charged — in other words, that every thing was done correctly, as far as concerns/oral and manner. This objection was taken, and seriously urged at the bar in Lewis’s case. It was considered by the Court, and overruled, although not noticed in the opinion, in this case, therefore, it must he taken that the grand jury were duly sworn; also that William Peace, who is marked as foreman of the grand jury, was duly appointed, ami that “ Win. Peace,” who signed the bill as foreman, is the same William Peace who was so appointed. For the Court receives the indictment with that endorsement, as an indictment, and files it with its records. What is said upon the subject of superior and. inferior Courts, and the distinctions taken are fully supported by the cases cited by the Attorney-General, Bub the most prominent, and that referred to by most authors who speak on the subject, is the. case, in ICeéble’s Rep. 639, and certainly the rule, so far as regards superior Courts,'is warranted by good .sense ; for it is hut a rational presumption, that Courts of superior jurisdiction conform to the manner of doing business, prescribed by law, until the contrary appears.

As to the objection, that in the record if is called autumn term ; it is true, there is none such known in the law. But where’ “ autumn term” occurs, there was no necessity of naming any term — for the style and caption of the proceedings, the record of the opening of the Court *442sli0w, when, where, and before whom, the Court was held, and the taking of the indictment is a proceeding of that term.

jt ¡;g jastly urged, that upon a critical construction of the indictment, it does not more appear, that Kimbrough dragged, pulled and choked Davis, than that Davis dragged, pulled and choked Kimbrough. However tins may be upon the first count, I think no such objection as this appears on the second. In that count it'is charged, that Kimbrough made an assault upon Davis, and that Kimbrough placed a rope around Davis’ neck, and that the said Kimbrough, by means of the said rope, the said John Davis. did choke and strangle; and that the said Kimbrough, with a dagger, which he then in his hand held, the said John Davis, in and upon the belly of the, said John Davis did thrust and penetrate, giving to him the said John Davis, with the said dagger, in and upon the belly of him the said John Davis, a mortal wound, of which the said John Davis died on the next day; with a conclusion, that he the said Kimbrough the said John Davis did kill and murder. Human ingenuity cannot make out from this, that it stands indifferent, whether Kimbrough or Davis was the actor in all and every act necessary to constitute murder; or which was the agent and which the sufferer, not only in the close of the drama, but in each and every act, which led to the catastrophe.

Per Curiam. — Let the judgment of the Court below be affirmed.

*

The following' is an exact copy of the dictum referred to, as it is printed in the American edition of Swanston, published in 1826 :

> “ Though in ordinary cases, to know what has passed, the deeds must be produced, yet if a man declines to produce the deeds, as convicting him of simony, I should be glad to know whether this Court would not receive secondary evidence ? If the deeed is in the hands of a person who objects to the production, as convicting him of a crime, whether against a party so objecting, secondary evidence of the contents may not be produced, as in the case of a lost deed, is a question, so far as I know, yet undecided. It is clear that, in a case in which the Defendant says that he will not disclose the contents of a deed in bis possession, because, if he does, lie shall pnne himself guilty of an offence, the contents of that deed may not b, proved by information ? If a man chooses to place a deed m his possession in the same condition as if it were lost, it is a question, whether the- con, tents of that deed may not be proved in the usual mode by which proof is given of the contents of a lost deed ?”