#### THE STATE vs. ALFRED SMITH.

Where on .an indictment, the defendant pleads a former conviction, it is competent for him, to prove by one, who was not a witness on the former trial, what a witness, who was examined on behalf of the State on thafc trial, deposed to, though that witness was still alive and within the jurisdiction of the Court, in order to shew the identity of the cases.

The case of the Governor v; Roberts, 2 Hawks. 26, cited and approved.-

Appeal from the Superior Court of Law of Columbus County, at the Fall Term 1849, his Honor Judge Dick presiding.

This was an indictment for assault and battery on one John Penny. The defendant pleaded not guilty and former conviction for the same offence. The State proved that the defendant struck one John Penny with a stick in the County of Columbus, within two years before the finding of the bill. The defendant then offered in evidence *34the records of the Court of Pleas and Quarter Sessions for Columbus County, from which it appeared that a bill of indictment was found against the defendant, at- August Term 1849, charging him with an assault and battery on one John Penny, and, at the same Term, the defendant come into Court and submitted and was fined by the Court, all of which appears by the records of said Court. The defendant alleged, that one James G. Peai’ce was examined as a witness on the part of the State in the Court of Pleas and Quarter Sessions aforesaid, on the submission of the defendant, and the defendant proposed to prove by a witness, what Jas. C. Pearce swore in the County Court on said submission, and that what Pearce swore to in the County Court would show that it was the same offence. The defendant admitted that Pearce was then living within the County and the jurisdiction of the Court and had not been summoned. The Court rejected the evidence. The jury found the defendant guilty. The defendant moved for a new trial, because the Court had rejected the evidence aforesaid: which was refused and judgment pronounced on the defendant, from which judgment the defendant prayed for and obtained an appeal to the Supreme Court.

Attorney General, for the State.

D. Reid, for the defendant.

Nash J.

The defendant is indicted for an assault and battery. lie pleaded a former conviction for the same offence. To sustain his plea, he gave in evidence, the record of an indictment against him, in the Court of Pleas and Quarter Sessions of Columbus County, for an assault and battery upon the same person, who is the prosecutor in this case. The record showed a submission on the part of the defendant, and a judgment of the Court. To establish the fact that the assault and battery, for which he was *35then tried and punished, was the same for which he is now prosecuted, he called a witness to prove, what a man, by the name of Pearce, wrho was a witness in that case, had sworn to and that it would show the offence to be the same. It was admitted that Pearcp was alive and in the County. This evidence was rejected by the Court. We are not informed upon what ground it was ruled out. If therefore, a wrong reason should be suggested, our excuse must be, the want of such information. We presume his Honor, who tried the cause, was led into error, by applying to the testimony the general rule, that the best evidence the nature of the case admits is always required. Such is the general rule and the reason upon which it is founded will show its improper application here. The law does not require the strongest possible of the fact in controversy, but that no evidence shall be admitted, which, from the nature of the thing, supposes still greater evidence to be in the parties’ power to produce; for the reason that it carries with it a presumption, contrary to the intention, for which it is produced. For it is a natural conclusion, that a man will not rely on secondary evidence, having at his command that which is primary, if the latter will serve his purpose. In this case the evidence excluded was not secondary, but primary, of the same grade as that which could have been given by Pearce, the witness on the original trial. The general rule does not exclude evidence, merely because it is not all that might be produced, or the most satisfactory. The best application of this rule', that I have met with, is furnished by a decision of this Court in the case of Governor v. Roberts, 2nd Hawk 26. The Secretary of State was called as a witness to produce certain papers belonging to the office of the Comptroller. The latter was absent on a journey, and before he left, deposited the key of his office with the Secretary, requesting him to attend to his office while he was absent, and answer any calls. The Comptroller had *36not been summoned, and the Secretary testified that he attended, as his agent or on his behalf, with the papers. It was held that although the testimony of the Comptroller would be more satisfactory than that of the Secretary, yet both being oral, were of the same grade, and therefore the testimony offered was competent. The enquiry here was not whether the testimony of Pearce would be more satisfactory to the jury than that of the witness tendered, but whether that of the latter was of an inferior grade. As in Roberts’ case, the testimony from either witness was oral and of the same grade and his Honor erred in rejecting the witness offered. 3d Stark. Ev. 391. Liebman v. Pool, 1st Stark. Rep. 467.

Per Curiam Judgment is reversed and venire do novo ordered.