#### Hilts *against*Colvin.

NEW YORK,

May, 1817

To support he been convicted ev¡deaceopíwe ashmssibie, aithough it he proved that the thecounty^had record probably tberR°i®dhigh?r fict Capable‘of thátB Pis¡duí(he vcraHnto the chequer by the teypreíumed“to veredhuch’being his duty as s public officer. Whether tbe copy of the sentence, given by the clerk to the sheriff, and delivered by him with the prisoner to thb keeper of the state prison, would be higher evidence of a conviction than paroi proof? *Quare**

IN ERROR to the court of common pleas of the county of *Herkimer-*

The plaintiff in error, who was plaintiff in the court below, brought an action of trespass on the case, against the defendant, for deceit in the sale of a horse. The cause was tried at the *July*term of the court below, in 1816.

The plaintiff, to prove his cause of action, produced one *J°hn G. Hilts*as *&*witness, to whose admissibility it was objected by the counsel for the defendant that he had been convicted of grand larceny. To prove this fact, witnesses were called, who testified that the clerk’s office in the county of *Herkimer*was burnt down in April, ! 804, and that most, if not all, the papers and records had been destroyed. A witness also stated that *John G, Hilts*had previously been convicted, in that county, of harbouring stolen goods, anU had been sentenced *183to the state prison for three years, or thereabouts. To this testimony the plaintiff’s counsel objected that it was insufficient; that the record of conviction should be produced, or proof given that it had existed and been lost; and that then parol evidence ought not to be received, as the case admitted of higher proof. The court, however, excluded the plaintiff’s witness, who having no other testimony, was nonsuited, and tendered a bill of exceptions, which was removed into this court by writ of error.

Storrs, for the plaintiff in error.

There was no evidence of the witness having been convicted of larceny. No record of his conviction was produced, nor was it shown that any such record had ever existed. A conviction alone is not sufficient, but a judgment must be shown ; for on a motion in arrest the conviction may be quashed.* Though the witness admits the conviction, it is not enough; but the record must be produced.†

Again; here was not the best evidence of the conviction which could have been produced, for though the clerk’s office had been destroyed by fire, and his records and papers probably consumed, yet the clerk of the court is required to give a copy of the conviction to the sheriff, who must deliver it to the keeper of the state prison;‡ and by another statute relative to district attorneys§ they are required to certify a transcript of every conviction to the court of exchequer, at the next term, there to remain of record. It must be presumed, then, that such a record of the conviction is remaining in the court of exchequer, which might have been produced.

Again ; there was not a *crimen falsi,*or *felony,*occasioning a forfeiture of goods, to render the witness incompetent.

*Ford,*contra.

The offence was felony, and the punishment three years’ imprisonment in the stale prison. All felonies render a witness incompetent; and it is not the punishment, but the nature of the offence, that creates that infamy which incapacitates a witness.ǁ

As to the evidence of the conviction, the defendant having shown that the office of the clerk in which the records were kept had been destroyed by fire, and that the witness had been previously convicted, was entitled to produce inferior or secondary evidence. The list of convictions handed to the sheriff *184with the prisoners was not higher evidence. And it was not 1 ° shown that any certificate had been sent by the district attorney t0 the court of exchequer.

*

 Lee v. *Gensel,*Cowper, 1-3.

†

 8 *East Rep.*78 *Philips*Evid. 26.

‡

 1 *N. R.*L. 275 35 sess. ch. 1 s. 16.

§

 1 N. R. L. 413 36 sess. ch. 89. s. 2.

ǁ

*Philips'*Evidence, 23-24.

Spencer, J.,

delivered the opinion of the court. The plaintiff below offered one *John G. Hilts*as a witness. He was objected to on the ground of his incompetency; arising from his alleged conviction of the crime of grand larceny.

It was proved that there were no papers or records in the clerk’s office of *H erkimer,*prior to *May,*] 804, and that in *Apr'l,*of that year, the clerk’s office had been burnt down, and most or all of the papers had been consumed. It was offered to be proved that the witness, *Hilts,*had been convicted, previous to 1804, for harbouring stolen goods, and sentenced to the state prison: which proof was objected to, but admitted by the court, and made out by parol; and the witness being excluded, the plaintiff was nonsuited for want of proof to sustain his action.

It is insisted, that there was higher and better proof of *Hilts’*conviction, and that he ought not to have been excluded: 1. The copy of the sentence required to be given by the clerk of the court to the sheriff, who is required to deliver the same to the keeper of the state prison, with the prisoner. (1 *R. L.*415. *K. & R.*sess. 24 ch. 121. s. 5.)

2. The certificate required by the second section of the act relative to district attorneys to be sent to the court of exchequer,, thereto remain of record, containing the tenor and effect of every conviction, the name of the person and addition, the offence, the day and place of the conviction, and before whom it was had, and the judgment given thereon; a copy of which, under the hand of the clerk and the seal of the exchequer, is declared to be good evidence of such former conviction. (1 *R. L.*462. *K.*& *R.*sess. 24 ch. 146. s. 2.)

Whatever may be thought of the first objection, the second is decisive. It is always to be presumed that a public officer has done his duty, and this presumption stands until it is disproved. We must then intend that there was, in the court of exchequer, the transcript pointed out by the statute; and it follows that there was higher proof in the power of the party than that given at the trial below. This court, in the case of the *People*v. Herrick, (13 *Johns. Rep.*82.) decided, that a party who would take exception to a witness on the ground of his conviction of the *185*crimen falsi,*must have a copy of the record of conviction ready to produce in court. The judgment below must be reversed.

Judgment reversed.