Simon v. . Manning

Smith, C. J., (after stating the case). The offer was to prove that L. G. Cherry did not, as he himself testified, deny that he owned the goods in his charge and assert that they belonged to his wife, but, on the contrary, demanded that his exemptions should be laid off, thus exercising a right of ownership of them. The testimony itself was perfectly competent in contradiction of the statement of L. G. Cherry, for it was but a different version of what passed between him and the officer when the latter came to make levy under the writ. Had any one else been present and heard the conversation that passed between the parties,'he would have been permitted to testify to it. But the proposal was to prove it by the unsworn declaration of the deputy, made to the other deputy, after his return from the store. This was clearly inadmissible, since testimony comes to the jury under the sanction of an oath, and this assurance of the verity of the testimony is wanting, and the law imperatively demands it when witnesses give their evidence. The cases cited in the brief of defendant’s counsel are mostly to the effect that when part of a conversation is given in, the party against whom it operates has a right to have all of it heard. Its *330 admissibility is defended upon the further ground that the words spoken accompany the official act of levying the execution and form part of the res gestse, and for this is cited the case of Grandy v. McPherson, 7 Jones, 347. It is undoubtedly a rule, that what one says while doing an act, receivable in evidence, qualifying and explaining the act, becomes a part.of, it and may be shown, and such is the principle of this decision, and the ruling goes no further. The point in the case was the alleged levy upon a store, and a witness swore that he saw the defendant go to the cabin where the store was, about that time, and that he came thence to witness in the field and engaged him to take the custody .of the store. This testimony was given after the endorsed levy upon the writ had been shown. The Court declared the exception to the testimony untenable, and says: “The visit to the cabin and the contract with the witness for the future care of the store 'were facts fit and proper to be proved.’ The latter,” continues the opinion, “ could only be proved by the words used between the parties, and the former would be-shorn of much of its significance and weight, unless accompanied by the declarations explanatory of its object. The whole conversation, therefore, between defendant and witness McCoy was competent as part of the res gestse. The declarations received were an essential part of the proceeding in making'the levy under the writ, and were admissible for the same reason that the act itself was, and to give it meaning and character.” The rule is stated with great clearness by Greenleaf in the first volume of his excellent treatise on the law of evidence, § 108, thus: “ His declarations made at the time of the transaction and expressive of its character, motive, or object, are regarded as verbal acts indicating a present purpose and intention, and are therefore admitted in proof like any other material facts.” *331 Again, in § 10, he further observes, “that where declarations offered in evidence are merely narrative of a past occurrence (the italics are the author’s) they cannot be received as proof of such occurrence.” So, when the declarations of one in possession of land were offered to show the extent of his title under a deed, and that a fee passed were refused, the Court upon a review of the exception to the exclusion, said: “The acts and declarations accompanying possession in disparagement of the declarants’ title, or otherwise qualifying his possession, are received as part of the res gestee,” and the citation from Greenleaf, as to the declarations that are subsequent and narrative merely, are reiterated in Roberts v. Roberts, 82 N. C., 29. Brought to the test of the rule thus established, the declaration of the deceased deputy, as to what occurred at the store and what was said by the witness Cherry, were properly rejected, inasmuch as it was but a statement or narrative of what had passed, and cannot be received as evidence of the fact, except it reaches the jury through sioorn witnesses. Undoubtedly the deceased could have testified upon the matter because it had been given in evidence by the plaintiff, but not what the deceased said it was, no more since his death than if he were living. The words are not associated with the act of the officer and explanatory of it, for the levy is not disputed and as such needs no explanation. There is no error, and the judgment is affirmed. Affirmed.