#### STATE v. LAWRENCE BLACK

It was held not to be error in the Court to admit evidence of the contents of a written instrument, upon the assurance of the counsel offering it, that he would subsequently show the destruction of such paper, which evidence was afterwards produced.

What the defendant said to the magistrate on the next day after the destruction of a paper, in his hands as a constable, and his reasons for not being able to return it, were Held not to be admissible.

Indictment for a misdemeanor, tried before Bailey, J., at the last Spring Term of Lincoln Superior Court.

The indictment charged that a certain warrant, against one Alexander Wilson, was duly issued by one David Bailey, a justice of the peace of the said county of Lincoln, charging the said Wilson with an assault and battery, was put into the hands of the defendant, -who was a constable in said county, and that he unlawfully did fail and refuse to execute the same and to make due return according to the exigency of the said warrant, against the form of the statute, &c.

Bailey, the magistrate, was called, and the solicitor proposed to show the issuing of the warrant by him, but it was objected, that no notice had been given to the defendant to produce the instrument, but upon the assurance of the solicitor, that he would show its destruction, the evidence was admitted. Defendant’s counsel excepted.

There was evidence, tending to show, that the warrant was destroyed in the presence of the defendant, and by his consent and connivance. The defendant then offered to show, that *511Re went the next day to the magistrate and made a statement going to exculpate himself from a wilful destruction of the precept. This was objected to by the State’s counsel, and rejected by the Court. Defendant again excepted.

Attorney General, for the State.

Guión, for the defendant.

Battle, J.

We are unable to discover any thing in the errors assigned by the defendant, in his bill of exceptions, to entitle him to a venire ele novo. Whatever force there might, have been in the objection to the admission of the testimony, relative to the issuing of the warrant, and its tenor before its destruction was proved, was entirely removed when such proof was given. We believe that it is not uncommon for a court to admit testimony, the competency of which, depends upon some other proof, when an assurance is given by the party that he will offer such preliminary proof,'and when it is introduced, we cannot see how the opposite party can be prejudiced by the order in which the testimony was given. In the present case, the destruction of the State’s warrant by the defendant, was the main allegation in the bill of indictment, and of course, it had to be proved in the progress of the trial, for the purpose of establishing his guilt. He could not, therefore, be, in any manner, prejudiced by the proof that the warrant was prepared and delivered to him by the magistrate ; for it could not hurt him, unless it was afterwards pi’ov-ed that lie had destroyed it.

The second exception, founded upon the rejection of the testimony, offered by the defendant, to show that the day after the destruction of the warrant, he went to the magistrate and explained how it came to be destroyed, and that in consequence thereof, he could not make a due return, is also untenable. He could not thus make evidence for himself, to exculpate him from the charge of having destroyed the State’s .warrant; State v. Tilley, 3 Ire. Rep. 424; State v. Neville, (ante 424,) decided at the late term in Baleigh, and not yet *512reported. Nor was it evidence of a return, or of an excuse for not making a return, as lie had released the defendant in the warrant from arrest, and therefore, did not have him in custody, so as to be ready to make a due return before the magistrate.

As we do not find any error in either of the exceptions assigned, we must direct the judgment to be affirmed.

Pee Curiam, Judgment affirmed.