State v. Webb, 2 N.C. 120, 1 Hayw. 120 (1794)

Sept. 1794 · North Carolina Superior Court

2 N.C. 120, 1 Hayw. 120

State v. Webb.

depositions taken in the absence of a criminal, shall not be real.’ against him.

Pleasant Webb

was indicted for horse-stealing, and upon the trial the Attorney-General offered (o give iu evidence the deposition of one. Young, to whom he had sold the horse in South-Carolina, but a very short time after the horse was stolen ; and cited in support of this attempt, 2 H. H P. C. 284. 11. P. C. 429. Bull. 252. La. JSvid. 140, 142. 5 Term Rep. 713.

But per curiam,

Judge Ashe and Judge Williams

These authorities do not say that depositions taken in the absence of tiie prisoner shall be read, and our act of Assembly 1715, ch 16, dearly implies the depositions lobe read, must be taken in his presence : it is a rule, of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine ; and though it he insisted that the. act intended to make an exception in this instance, to the rule of the common law, yet the act lias not expressly said so, and we will not, by implication, derogate from the salutary rule established by the common law. So the deposition was rejected.

Note. — Vide Philips on Evidence, 299, and see whether the English practice upon this subject is founded upon principles that ought to be adopted in this country.