#### STATE v. I. L. HOOPER.

(Filed 22 September, 1909.)

1. Evidence — Notes of Committing Justice.

The notes of evidence made by a committing magistrate upon the hearing are not conclusive as to the testimony of witnesses examined.

2. Same — Parol Evidence — Independent Recollection.

On the trial in the Superior Court it is competent for purposes of contradiction, to offer parol evidence as to what a witness testified to upon such preliminary examination.

Appeal from Peebles, J., March Term, 1909, of PasquotaNk.

Indictment for attempted burning of a dwelling house, the property of Tennie Walker.

There was a verdict of guilty. The defendant was duly sentenced, and appealed.

The facts are sufficiently stated in the opinion of Mr. Justice Brown.

Attorney-General for the State.

W. M. Bond, J. Ileywood Sawyer and Ay Metí & Ehringhaus for defendant.

BROWN, J.

Upon the trial, Miles Jennings was a most important witness for the State, and upon the accuracy of his testimony very largely depends the identification of defendant Hooper, whom said witness states he saw as he was leaving the empty house at the time of the fire.

On the trial, defendant offered E. L. Sawyer, an officer, who committed defendant for trial, for the purpose of contradicting Jennings. Sawyer testified: “J am judge of the Criminal Court. Jennings was sworn and examined at the trial.” The defendant asked witness if he remembered the testimony of witness Jennings at the trial before him in this cause, and, if so, to state what he said as to the identification of the defendants. Witness *647stated tbat be reduced tbe testimony to writing and bad same in bis band. Tbe State objected; objection sustained, and defendant excepted. Witness produced bis notes of tbe testimony, wbicb were introduced.

We do not tbink tbat tbis exception can be sustained, for tbe reason tbat it does not appear tbat Sawyer bad any independent recollection of any material evidence wbicb be bad not set down in bis written notes of tbe evidence. wbicb were introduced by tbe defendant, wbo got tbe benefit of tbem. But we are impelled to tbe conclusion tbat bis Honor erred in rejecting tbe evidence of Mrs. Jarvis Seeley, and tbat sucb error was bigbly prejudicial to tbe defendant. Sbe.was asked if sbe recalled tbe testimony of Jennings before tbe trial justice, and, upon answering in tbe affirmative, was asked to state wbat Jennings swore to at tbe trial as to tbe identification of Hooper. Objection by tbe State, for tbe reason tbat testimony of Jennings bad been reduced to writing by tbe trial justice. Objection sustained, and defendant excepted. .

It is plain tbat tbe purpose of defendant was to contradict Jennings by proving by Mrs. Jarvis wbat be testified to before tbe committing court. It was perfectly competent to prove by parol evidence tbat Jennings bad made contradictory statements as to the identification of the defendant. State v. Wright, 75 N. C., 439; State v. Roberts, 81 N. C., 605; State v. Lyon, 81 N. C., 600. The fact that tbe court bad made notes of tbe evidence did not make such notes tbe only and tbe conclusive evidence. Sucb notes are usually offered to refresh tbe recollection of the official who made them (State v. Adair, 66 N. C., 298), and it may be that they are competent as far as tbey go as independent evidence. State v. Pierce, 91 N. C., 612. But it has never been beld tbat sucb notes are tbe only and tbe conclusive evidence of wbat tbe witness testified to. The exception must be sustained.

There are other assignments of error wbicb it is unnecessary to consider, as tbe defendant is entitled to a

New trial.