Perkins v. State

Davison, J.

This was an indictment for receiving and concealing stolen goods. Plea, not guilty. Verdict and judgment for the state.

*223 Upon the trial, the state introduced one Hite, who tes3 tilled that one Brown, one Spencer, and himself, had stolen the goods specified in the indictment; and that the defendant, knowing the goods to have been stolen, received them into his possession and assisted in concealing them. Whereupon the defendant proved by other witnesses that said Hite had stated out of Court that he had made the charge against the defendant with the hope of a pardon, and that the defendant had nothing to do with the matter. Thereupon the state, for the purpose of sustaining- Hite's evidence, offered a witness to prove that Hite, before the grand jury that found this indictment, had sworn the same that he did on the trial in Court. The defendant objected, but the Court overruled the objection and permitted the witness to inform the jury what Hite had sworn before the grand jury; which, in substance, was the same as the evidence given by him on the trial in Court.

The admission of evidence to show what Hite swore to before the grand jury, is the only error assigned. Was this testimony correctly admitted?

In Beauchamp v. The State, 6 Blackf. 299 , it was held that “if a witness be impeached by proof of his having previously made statements inconsistent with his testimony, he may be supported by proving other statements made by him in accordance with it.” See, also, Coffin v. Anderson, 4 Blackf. 395.—Jackson v. Etz, 5 Cowen 314.

The plaintiff- admits the force of these authorities; but he contends that a distinction exists between the cases just cited and the one before us. He alleges that “there may be some propriety in receiving evidence of statements made out of Court,” &c., “for it tends to show that the witness that testifies to the conflicting statements may have been mistaken; but nothing of that sort can be implied from this double swearing.” We cannot see the point of distinction sought to be made. What the witness, Hite, had sworn before the grand jury was, in effect, a statement out of Court. It was consistent with his testimony upon the trial, admitted to repel the force of the evidence given to impeach his character for veracity; and *224 eing made under oath, it could not, on that account, be less effective or more liable to objection.

J. Ryman, for the appellant. B. J. Spooner, N. B. Taylor, and J. Coburn, for the state.

It seems to us that the case presented by the record is, obviously, within the rule laid down in Beauchamp v. The State, supra. The validity of this rule has been denied. Mr. Greenleaf says, “Evidence that he, the witness, has, on other occasions, made statements similar to what he has testified, is not admissible” (1) . But, in our opinion, the weight of authority is decidedly in favor of admitting the evidence. Coffin v. Anderson, supra, and cases there cited.

Per Curiam.

The judgment is affirmed with costs.

1 Greenl. Ev., s. 469.