State v. Emory, 51 N.C. 133, 6 Jones 133 (1858)

Dec. 1858 · Supreme Court of North Carolina

51 N.C. 133, 6 Jones 133

STATE v. EPHRAIM EMORY et al.

What is said by a person of color, '(otherwise incompetent to testify,) 'in explanation of the nature of the possession which he'then, has of land, is admissible as a part of the res gestee ; but what he -says about such possession after he has left the land, .& not admissible.

INDICTMENT for a eoecible teespass, tried before Saundebs, J., at the last Fall Term of Granville Superior Court.

One Fuller, a free negro, occupied a house, in the forcible taking possession of which, it was alleged the trespass was committed. It was preved that the family of Fuller was put out of possession of the premises with violence, -and that he and they were kept out from that time, forth.

The defendants offered to prove, that on the next day after •the forcible eviction, Fuller, the free negro, stated that he had agreed with the defendant, Ephraim Emory, that he might come and take possession of the house in question. This evidence was rejected by his Honor, and the defendants excepted.

Yerdict — -guilty. Judgment and appeal.

Attorney General, for the State.

Miller, for the defendants.

PbaesoN, C. J.

Puller, being a free negro, was not competent as a witness,- and could not have been heard on oath, to prove the fact alleged, to wit, that he had agreed that Emory might take the possession. We are unable to see any principle upon which Ms naked statement, on the day after the matter occurred, is admissible to prove the fact; his statement is certainly not more to be relied on than his oath.

While he was in possession, his statements in explanation, of the nature of such possession, would have been competent as part of the res gestae ; but after he was turned out, his statement in reference to a fact, alleged to have taken place before, is not aided by the principle of evidence referred to, and is a mere naked declaration in regard to a matter that had past, unsupported by any test of truth.

There is no error. This will be certified.

Pee OuRiAM, Judgment affirmed.