Opinion
October Term, 1799.
On an indictment for perjury, the person against whom the defendant testified, and upon whose testimony he was convicted upon a charge for an assault and battery, is a competent witness.
Slade, for the defendant, objected to his being sworn, on account of the strong bias which he must necessarily feel, to procure the conviction of a person by whom he had been prosecuted, and through whose means he had been found guilty and fined. That from such impressions the mind of a witness ought to be perfectly free, otherwise the facts he relates will be either distorted or so discolored by the resentment which actuates him, as to be equally adverse to the discovery of truth. He cited the case of Rex v. Whiting. 1 Ld. Ray., 396, where it was decided that upon an information for a cheat in obtaining by imposition a note for £ 100, instead of £ 5, the person thus imposed upon was not admitted to give testimony, because he was in some measure concerned in the consequences of the suit, since a conviction would have been a tendency to discharge her from the payment of the £ 100. That it is there also expressly ruled by the Court that the case was not distinguishable from perjury or forgery, where the party interested in the deed or prejudiced by the perjury shall not be admitted to prove the perjury or forgery. He also cited Rex v. Nunez, Str., 1043, where the authority of the former case was recognized and followed; that was an indictment for perjury committed in an answer in chancery, wherein the defendant denied an agreement charged in the bill, not to sue a note given to him by (140) the prosecutor, who, being called upon to prove the agreement, was rejected as incompetent. The same doctrine is also established in Watt's case, Hardr., 331, where it is laid down, generally, that no person who is a loser by the deed, or who may receive any advantage by the conviction of the defendant, can be a witness against him in an indictment for forgery. He argued that the same principle is properly extended to perjury, where the prosecutor may consequently derive a benefit from the conviction of the defendant.
This was an indictment for perjury, charged to have been committed by the defendant, in giving evidence on a trial between the State and George Wynn for an assault and battery committed on the defendant. George Wynn, the prosecutor, was offered by the Attorney-General to prove the perjury.
The cases cited by the defendant's counsel were relied upon in the case of Abrahams, qui tam, v. Bunn, 4 Burr., 2255, and were all, upon argument and consideration, overruled. The rule laid down in that case was that the question in a criminal prosecution, being the same with a civil cause in which the witness was interested, went generally to his credit; unless the judgment in the prosecution where he was a witness could be given in evidence in a cause in which he was interested; in the latter case, it would be an objection to his competency. If this rule be correct (and it seems to have been so considered ever since), its application to the present case leaves no room to doubt the competency of the witness.
Objection overruled.
NOTE. — See State v. Wyatt, 3 N.C. 56, and the cases referred to in the note.
(141)