Opinion
June Term, 1824.
The question to be tried on the plea of nul tiel record is a question of fact to be tried by the court, and not a question of law. And where the court below rejected a paper offered as a copy of the record because the seal attached to it was so indistinct that it could not be recognized as the seal of any court, this Court on appeal has no power to examine whether the fact as to the indistinctiveness of the seal be as stated or not; it must take it to be true as stated, and, of course, if true, the paper was properly rejected.
THE prisoner was indicted for grand larceny, found guilty, and prayed the benefit of clergy. To the prayer of clergy, the State, by its solicitor, objected on the ground that the prisoner had before been allowed his clergy on a conviction of grand larceny in Duplin County, and produced a paper purporting to be a transcript of the (186) proceedings on the trial in Duplin, the certificate on which stated it to be a true copy from the records, "given under my hand and seal," and signed with the clerk's name; the seal attached to this record was so indistinct and faint in its impression that it could not with certainty be ascertained what seal it was. The court below, Norwood, J., presiding, refused to consider the paper produced as a copy of the record of Duplin, and allowed the prisoner his clergy, whereupon the State appealed.
The Superior Court could only judge by inspection whether the record produced was an exemplification under the seal of the Duplin Superior Court; and as the impression of the seal is not more visible to us than it was to the judge who decided the case, it cannot be said that he has erred in point of law. The certificate of the clerk might have been referred to the seal of the court if it sufficiently appeared that such seal had been affixed to the record; but that does not appear, and we must consider this either as a record without seal or as under the private seal of the clerk. Where a record of the same court is put in issue it must be examined by the court on nul tiel record; but if it be a record of another court, an exemplification of it under seal must be produced. As it cannot be seen that this was done in the present case, the judgment must be affirmed.
The question to be tried on the issue joined on the plea of nul tiel record is as much a question of fact as that arising on any other issue. It is true the court tries it, and not the jury, but that does not change it to a question of law. Questions of law may (187) arise on the admissibility of the evidence, and these questions this Court can reexamine, but not the evidence itself. The case states that the record was certified under hand and seal of the clerk, without any reference to the seal of the court, and there was on paper something like the seal of the court, and probably was intended for it, but that the judge, from the indistinctness of the impression, was unable to recognize it as the seal of the court, and therefore rejected the evidence. If these are the facts (and we are bound to take them to be so, for we cannot reexamine them), the record was properly rejected as evidence. S. v. Grayton, post, 187.
PER CURIAM. Affirmed.
Cited: S. v. Grayton, post, 187; S. v. Raiford, 13 N.C. 215; S. v. Worley, 33 N.C. 243; Fain v. Edwards, 44 N.C. 67; S. v. Green, 100 N.C. 422.