#### THE STATE vs. GEORGE, A SLAVE.

Where evidence of inconsistent statements of a witness is introduced by'the adverse party, it is proper to permit the party, who called the witness, to prove other statements conforming to the testimony given on the trial.

And the witness attacked may himself be examined on that point.

The cases of *Johnsonv. Patterson,*2 Hawks 183, *State*v. *Twitty,*2 Hawks 449, *Smith*v. *Smith,*8 Ire. 29, and *State*v. *King,*5 Ire. 203, cited and approved.

Appeal from the Superior Court of Law of Person County, at the Spring Term, 1848, his Honor Judge Pearson presiding.

The prisoner was indicted in the County of Granville for the murder of James Meadows, and upon his affidavit his cause was removed to the County of Person, where it was tried on the last circuit.

After introducing testimony, to show that the dead body of James Meadows was found at the draw bars, about eighty yards from his dwelling house, on a cer*325tain morning in the month of September 1846, much cut, bruised, and lacerated, the Solicitor for the State called as a witness Seth Meadows, a son of the deceased. He stated that he was about nine years old when his father was killed ; that his father, his sister Susannah, who was about fifteen years of age, several other children, and himself, lived in a small log house, containing but one room with two doors, one facing the north and the other the south, and no window; that on a certain Sunday night in the month of September 1846, his father and himself were sleeping in a bed near the north door, while his sister Susannah and the other children slept in another bed near the opposite door; that about two hours before day-break, he was awaked by the struggles of his father, when he saw three men drag him out of the bed, and take him out of the house through the northern door, one having hold of his head and the other two of his legs, and he thought that one of the men who had hold of his father’s legs, was the prisoner, because he was yellow, was built like him and was about his size. The witness stated further, that, as soon as they got out of the door, he being much alarmed, went to the bed where his sister Susannah was sleeping and waked her up, and told her that some persons had carried their father out of the house, when she made one of the other children get up and shut the door, which they had left open. He stated further that it was a bright moon-light night, and that he was well acquainted with the prisoner, who was a low, thick-set, bright mulatto. The Solicitor then asked the witness, if he told his sister, when he went to her bed and waked her up, who he thought it was that had carried his father out of the house ? This question was objected to by the prisoner’s counsel, but the Court permitted the witness to answer, when he said that he told his sister that some men did it, but did not tell that he thought the prisoner was one of them. The Solicitor then asked the witness, whether he told his sister next *326morning, who he thought one of them was; this question was also objected to by the prisoner’s counsel. The Solicitor then remarked, that he was aware, that the prisoner’s counsel expected to prove, that the witness, although several times interrogated upon the subject before the jury of inquest, did not state, until after the prisoner had been arrested, that he thought from the colour or other description, that either of the persons was the prisoner; but, on the contrary, had stated that he did not know who the persons were. The prisoner’s counsel admitted that they expected to make the proof as suggested by the Solicitor, but they contended that although they had the right to impeach the witness, by proving that, when on oath or not on oath, he had made statements different from those made on the trial, yet that it was not competent for the State to sustain him by proving that when not on oath, he had made the same statement as he had made on the trial. The Court permitted the question to be asked, and the witness answered, that about day-break in the morning, some two hours after his father had been taken out of the house, he told his sister that two of the men were black like negroes, and the other was a yellow man like George, the prisoner. A similar question was permitted to be asked, after objection, whether the witness had told one William Philpot, the next morning, who he thought it was; and Philpot was then introduced, and permitted to state, after objection, that the witness, Seth Meadows, had told him, on the morning the dead body was found, that one of the persons, who committed the act, was yellow like George, the prisoner.

The prisoner’s counsel then introduced witnesses,, who stated that when the witness, Seth Meadows, was under examination before the jury of inquest, he was asked several times, whether he knew, who took *his*father out of the house, to which he replied, that he did not. They stated farther that he persisted in this answer, until, after the •prisoner was arrested the next day, and that he then sfca-*327ted to the jury on oath, that one of the persons was yellow, and that from his colour, build, and height, he took him to be George, the prisoner.

The jury returned a verdict of guilty. Amotion fora new trial was made upon the ground, that the Court had received improper testimony, but it was over-ruled by the Court. A motion in arrest of judgment was then made “because the certificate of the Clerk of the Superior Court of Law, in and for, the County of Granville, after the transcript had been sent to this (Person) Court, and during the term of this Court, and after verdict, was altered by the Clerk of the Superior Court of Law, in and for, the County of Granville, under his hand and seal of said Court, at the Court House in Roxboro’ in Person County, so as to make it read “ Clerk of the Superior Court of Law,” instead of “ Clerk of the Superior Court, &c.” This motion was also over-ruled, and sentence of death pronounced, from which the prisoner appealed.

*Attorney General,*for the State. '

*JE. G. Reade*and *Gilliam,*for the defendant.

Battle, J.

The objections to the admission of testimony, made by the prisoner on the trial, raise two questions for our consideration, of which, one is subordinate to the other. The first and main question is, whether, when a witness is sought to be impeached by proof of former statements, inconsistent with his testimony on the trial, it is competent for the party or prosecutor who has introduced him, to prove other consistent statements for the purpose of corroborating him. Upon this question, the English authorities are conflicting, and it is very difficult, if not impossible, to reconcile them. *Hawk. 2,*ch. 46, sec. 46, and *Gilbert in his treatise on evidence,*150, (4th Ed.) followed by *MacNally,*1 Vol. 378, and the case of *Luttrell*v. *Regnell,*1 Mod. Rep. 284, support the affirmative, while Judge Belles. in his *Nisi Prius 294,*
      *328doubts of, and in *Parlter’s case,*3 Doug. Rep. 242, (20 Eng. C. L. Rep; 95,) dissents from the position, and declares for the negative ; in which it is said that he has the sanction of the great names of Lords Redesdale and Eldon. The modern writers on the subject of evidence, in this conflict of authorities, have endeavored to effect a compromise by laying it down as a rule, that, when the counsel of the opposite party imputes a design in the witness to misrepresent, from some motive, of interest or friendship, it may, in order to repel such imputation, be proper to show that the witness made a similar statement at a time when the supposed motive did not exist, or when motives of interest would have prompted him *to*make a different statement of facts. 1 *Phil, on JEv.*293. *Roscoe’s Grim Ev.*142. But however it may be in England, we consider it settled in this State, that such confirmatory testimony is admissible. In the case of *Johnson*v. Patterson, 2 Hawks Rep. 183, Chief Justice Taylor declared, that, where evidence of inconsistent statements of a witness is introduced by the adverse party, it is proper to permit the party who called the witness, to prove other statements conforming to the testimony given on the trial; and in support of this he relied upon the *authority of Gilbert.*In the *State*v. *Twitly,*2 Hawks Rep. 449, the Court extended the rule, and held that, in all cases where the credibility of the witness is attacked, from the nature of his evidence, from his situation, or from imputations directed against him in cross-examination, confirmatory evidence of this kind is admissible. In neither of these cases is the distinction, taken in *Phillip’s*and *Roscoe,*adverted to ; and we think that it is a distinction, which applies more properly to the *weight*than to the *competency of the*testimony. No objection was made on the trial, and none is insisted on in the argument here, to the time when the. testimony was offered. As soon as the prisoner’s counsel announced their intention to introduce the discrediting testimony, *it*
      *329became proper to bring forward the confirmatory evidence. But if it had been improper then, it was made competent afterwards by the introduction on the part of the prisoner of the impeaching testimony. *Smith*v. *Smith,*8 Ired. Rep. 29. Upon the main question of evidence then, we all agree in opinion, with the Judge in the Court below.

The subordinate question is, whether such confirmatory testimony can be given by the impeached witness himself, that is, can he testify to his own former declaration, consistent with his testimony given on the trial. The majority of us, Nash, J. *dissent.,*hold, that he can, and we so hold, because we are unable to discover any principal, by which the testimony can be excluded. We have all just agreed that the question is a proper one to be asked of *some*witness, and why may it not be answered *by any*witness, who is not forbidden to answer it on any one or more of the grounds of objection to the competency of witnesses *1*These grounds — and they are said by the highest authority to be the only, grounds — are want of reason, defect of religious belief, infamy, and interest. Lawrence, Justice, in *Jordaine*v. *Lashbrook,*7 Term Rep. 610, 1 *Phill. on Ev.*18. The witness here is obnoxious to none of these objections. The testimony, it is true, is obviously of so weak and unsatisfactory a character, that we are surprised it was offered ; but having been offered, and being of a kind proper in itself, and sworn to by a witness competent to testify in the cause, we can perceive no reason why it should have been excluded.

There is certainly no pretence for arresting the judgment for the cause assigned. The transcript of the record is duly certified to us, and it is now perfect, and we cannot enquire how it became so. *State*v. King. 5 Ired. Rep. 203. Besides a judgment can be arrested only for errors or defects, apparent on the record, but not for such as *330require to be brought to the notice of the Court by proof *aliunde.*

It must be certified to the Court below, that there is no error in the record.

Pas Cukiam. Ordered accordingly.