Opinion
December Term, 1824.
1. When a record states that a court was held before the Hon. J. P. (who is one of the judges of the Superior Courts), without adding that he is one of the judges, it is sufficient.
2. If, upon the second removal of a cause under the acts of 1821 and 1822, the clerk should transmit the same papers which had been sent to his office upon the first removal, and a prisoner should be tried and convicted thereon, it furnishes no ground to arrest the judgment.
INDICTMENT for murder, originally found in WAKE Superior Court, removed on affidavit of the defendant from Wake to Franklin, and again removed by defendant to Warren, under the acts of 1821 and and 1822. The record which was sent from Wake to Franklin commenced as follows:
Seawell and Ruffin volunteered to argue the points for him.
Attorney-General for the State.
"Be it remembered, that at a Superior Court of Law begun and held for the county of Wake at the courthouse in Raleigh on the first Monday after the fourth Monday in March, A.D. 1824:
"Present, the Hon. John Paxton.
"A bill of indictment was found, etc."
A regular certificate of the clerk, under the seal of the court, accompanied this record to Franklin. When the cause was removed from Franklin to Warren, the clerk of Franklin transmitted to Warren papers certified under the seal of his court, as follows: "That the foregoing copy contains a full and correct transcript of records filed and had in the case therein stated." The prisoner was tried and convicted in Warren, and moved in arrest of judgment on two grounds: first, that the record and proceedings did not show that the indictment was taken before any court having cognizance thereof; and, second, that the Superior Court of Warren had no jurisdiction, there (411) being no transcript sent of the records of Franklin Superior Court. The motion in arrest was overruled, and sentence of death pronounced, from which there was an appeal to this Court; and now, it being understood that the prisoner was unable to employ counsel,
The result of a careful examination of this record is a belief that neither of the objections taken by the counsel of the prisoner can be sustained in point of law. In the first place, the (413) record avers that a Superior Court of Law was begun and held for the county of Wake, at the courthouse in Raleigh, on the day which we know to be that appointed by law; and it further stated that a bill of indictment was returned into open court by the grand jury, with the indorsement "A true bill." Now, we know that by the public general law of the land a Superior Court cannot be held without the presence of one of the judges of those courts, and still less can a jury be constituted and a bill of indictment found by them. The record further states that at the same term the prisoners were brought to the bar, arraigned, and pleaded not guilty; that affidavits of two of them were made for the purpose of moving the case as to them to another county, and such removal was ordered by the court, and that the sheriff of Wake was ordered to deliver the bodies of these two to the sheriff of Franklin; all of which are acts and proceedings the existence of which cannot even be supposed without the presence of a judge of competent authority and jurisdiction. In addition to this, there is inserted in that part of the record, where the presence of the judge (414) is usually noted, the name of a gentlemen whom we know to be a judge of the Superior Courts; and when it is thus certified by the clerk that he was present at a Superior Court where all these attributes and functions of a judge were manifest and exercised, we cannot suppose that any private individual of the same name was accidentally present, whose presence the clerk should deem it necessary to record, and distinguish from that of the numerous persons usually attending. As to the power of the sheriff to open and adjourn the court from day to day until a judge shall attend, or until the third day, that is not a court in the usual meaning of the word, for its only effect is to prevent a discontinuance of the process, and give day to it as if the court had been duly held. 1806, ch. 194, sec. 2. It possesses no authority or jurisdiction whatever; it has no judge, and without the aid of the act cited the clerk could not even enter the formal continuances on the docket. On this objection, therefore, we feel convinced, beyond a personal or judicial doubt, that Wake Superior Court was held at the term by a gentleman who was then and is now one of the judges of the Superior Courts, and, consequently, that the indictment was taken before a court having cognizance.
The other objection is the defect of jurisdiction in Warren Superior Court for want of a transcript of the records of Franklin Superior Court, the clerk of the latter certifying only that the transcript transmitted to Warren is the same transcript which was transmitted from Wake to Franklin. This objection is founded on the act of 1806, ch. 693, sec. 12, which provides that when a cause is removed the judge is authorized to order a copy of the record of the said cause to be removed to some adjacent court for trial; and on the supplementary act passed the same year, which directs the clerk to transmit a transcript of the record to the county to which the cause is removed. From both these clauses there can be no doubt the Legislature designed that the original record should remain in the court where the (415) cause originated; and on this head no alteration has been made by any of the subsequent acts on the subject. It must be determined by the certificate of the clerk of Franklin Superior Court whether he complied with this requisite of the act or not. The proceedings of Wake Superior Court are drawn out at full length and certified by the clerk of that court to be a correct transcript of the records of the case. This transcript was sent to Franklin Superior Court, received there, and entered upon the docket. When the case was removed to Warren Superior Court, the clerk of Franklin certified "that the foregoing copy contains a full and correct transcript of records filed and had in the case therein stated." "The foregoing copy" imports that there was an original from which it was made. As to part of the copy, the original must have consisted of the records sent from Wake, which, though a copy in itself, forms, in relation to the clerk of Franklin Superior Court, when he makes a copy from it to be sent to Warren, an original. "The foregoing copy" contains what? A full and correct transcript. Now "copy" and "transcript," when applied to a writing, signify precisely the same thing; and, therefore, any presumption or implication that the clerk of Franklin by the terms "foregoing copy" meant the copy as sent to them by the clerk of Wake is entirely repelled; for the amount of this certificate is that the foregoing copy contains a copy. This will appear still clearer upon a further analysis of this certificate. Of what is the copy a transcript or a copy? "Of records filed and had in the case therein stated." The "records filed" in the case were those sent from Wake; the "records had" were those transacted in the court of which he was an officer. How was it possible for him to certify that any record was filed in the clerk's office at Wake? So that, reddendo singula singulis, he sends a copy of what he has filed, viz., the papers received from Wake and a copy of what took place in (416) his own court. When the law has affixed a definite and well understood meaning to certain terms and phrases, it is an unsafe mode of reasoning to wander into other sciences in pursuit of other definitions which are sometimes equivocal and sometimes metaphorical. In a legal sense, copy signifies a transcript of an original writing, as a copy of a patent, of a chart, deed, etc., and to file a record is to deposit it among the archives of the court for the more safe keeping, or ready turning to the same; derived from filum, a thread or string on which writs or other exhibits in office were formerly filed. It seems, therefore, that the last objection is founded upon the misapprehension of the clerk of Franklin's certificate, who does not appear to me to certify that the transcript transmitted to Warren is the same which was transmitted from Wake to Franklin. It is, therefore, the opinion of the court that the judgment be affirmed.
I cannot hope to add anything to the very excellent opinion delivered by the Chief Justice, and should be entirely silent on the subject were it not that, from the manner in which one of the objections very much pressed by the defendant's counsel was disposed of, it might be thought that the objection, if founded on fact, would have prevailed. I mean the objection, that upon the removal of the cause from Franklin to Warren the original transcript which was sent from Wake to Franklin, and not a copy of it, was sent upon the removal from Franklin to Warren. This inverts the order of proof and certainty, that which purports to be a copy may not. There may be many blunders or omissions in it after the most diligent search and corrections. Passing by its authenticity, we know that it is inferior to the original, and is only substituted as evidence when the original cannot from any cause be had. And its efficacy depends on its being a correct representation of the original. Its only weight is derived from that circumstance. It cannot be better or carried farther; but as the original cannot be had, necessity compels (417) its acceptance. But in no case can it be considered as superior to the original for any purpose. Public records, for their safety and preservation, are to be kept for those purposes at one place, and are not by law suffered to be carried about to suit the convenience of individuals. Copies of them are therefore received as representing them. The State may, therefore, complain of the clerk of Franklin for violating his duty; and so may this individual, if he has suffered any injury by it, and not without. For all the purposes for which this case was sent to Warren the original was equal, at least, to the copy. But it is said that the law is so written, and for the purpose for which it is so written it shall be observed. But I cannot shut my ear to the sound of my own voice and be regardless of the dictates of my own understanding. I was not placed where I am as a mere insensible organ. The laws, or, rather, the letter of the law, must go with a comment, and that comment shall be the will of the Legislature or lawmaking power, as I understand it from their words, not taken word by word and sentence by sentence, but all the words and sentences taken together. I cannot have a doubt — it appears to me impossible that one can be entertained — that that provision in the act requiring that a copy should be sent was for very different purposes than to sustain objections like the present. Could I see that the situation of the defendant could possibly be affected by using the original, I would pause before I would declare that even the original should not supply the place of a copy. But I am certain the direction was given for other purposes than can be applied to support this objection. I must say the objection cannot be sustained.
HALL, J., concurred.
PER CURIAM. No error.
Cited: S. v. Kimbrough, 13 N.C. 440; S. v. Seaborn, 15 N.C. 308; S. v. Martin, 24 N.C. 24; S. v. King, 27 N.C. 205; Short v. Currie, 53 N.C. 45.
(418)