Hilts v. Colvin

Spencer, J., delivered the opinion of the court. The plaintiff below offered one John G. Hilts as a witness. He was objected to on the ground of his incompetency; arising from his alleged conviction of the crime of grand larceny. It was proved that there were no papers or records in the clerk’s office of H erkimer, prior to May, ] 804, and that in Apr'l, of that year, the clerk’s office had been burnt down, and most or all of the papers had been consumed. It was offered to be proved that the witness, Hilts, had been convicted, previous to 1804, for harbouring stolen goods, and sentenced to the state prison: which proof was objected to, but admitted by the court, and made out by parol; and the witness being excluded, the plaintiff was nonsuited for want of proof to sustain his action. It is insisted, that there was higher and better proof of Hilts’ conviction, and that he ought not to have been excluded: 1. The copy of the sentence required to be given by the clerk of the court to the sheriff, who is required to deliver the same to the keeper of the state prison, with the prisoner. (1 R. L. 415. K. & R. sess. 24 ch. 121. s. 5.) 2. The certificate required by the second section of the act relative to district attorneys to be sent to the court of exchequer,, thereto remain of record, containing the tenor and effect of every conviction, the name of the person and addition, the offence, the day and place of the conviction, and before whom it was had, and the judgment given thereon; a copy of which, under the hand of the clerk and the seal of the exchequer, is declared to be good evidence of such former conviction. (1 R. L. 462. K. & R. sess. 24 ch. 146. s. 2.) Whatever may be thought of the first objection, the second is decisive. It is always to be presumed that a public officer has done his duty, and this presumption stands until it is disproved. We must then intend that there was, in the court of exchequer, the transcript pointed out by the statute; and it follows that there was higher proof in the power of the party than that given at the trial below. This court, in the case of the People v. Herrick, (13 Johns. Rep. 82.) decided, that a party who would take exception to a witness on the ground of his conviction of the [185] crimen falsi, must have a copy of the record of conviction ready to produce in court. The judgment below must be reversed. Judgment reversed.