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*265 PbaesoN, O. J. It is a familiar rule of evidence that when any part of a document is read in evidence to the jury, the opposing party is entitled to have the whole of it read, whether it be a deed, answer in equity, will, letter or any other paper writing. It follows as a corollary to this rule, that when a part of a paper writing has been torn off jmd lost, or defaced so as to be illegible, the fragment preserved cannot be put in evidence to show the contents of the writing, although it may be competent evidence to prove the naked fact, that there had been a paper writing, setting out matter of one kind or an. other, for it cannot be told how far the missing fragment would change the meaning and construction of the entire instrument. The same rule applies to conversations. If one party proves that the other said so and so, the other party has a right to have the whole conversation put in evidence, so that the jury may not walk in the dark, but have an opportunity to consider all of the surroundings. :
The same principle applies to evidence, of what a deceased witness swore to, upon a former trial. Unless the jury are informed of all that the deceased witness swore to, how can they pass on the full scope and effect of his testimony, its credibility, and its consistency with the testimony of other witnesses, &c. ?
The witness Raker, upon his preliminary examination, on the question of competency, swore that “ he paid attention to the examination of Daniel Cornbow, but was hard of hearing, and did not hear all that he said, but he did hear what he said, as to what land he had owned, and what land he had sold to Carver.” How Baker knew that he did not hear all that Daniel Cornbow swore to, was a matter for himself. He swears directly that he did not hear all that Cornbow said. This made his testimony “fragmentary,” as the books express it, and of course it was error. We are inclined to concur with his Honor in his rulings upon the merits of the case, and regret to be forced to grant a venire de novo upon a question of evidence, especially as another witness professed to testify to *266 all that the deceased witness swore to on the former trial, and in all probability many of the jury recollected the testimony of the deceased witness, and might have been called instead of the deaf witness.
So it was bad management on the part of the plaintiff, to press his deaf witness upon the Court and jury, unless he had sonie especial reason for it. However this may be, there is no telling the extent to which the jury were influenced by this incompetent evidence, and the defendant is entitled to a venire de novo.
Error.
Per Curiam. Yenire de novo.
Document Info
Citation Numbers: 73 N.C. 264
Judges: PbaesoN
Filed Date: 6/5/1875
Precedential Status: Precedential
Modified Date: 10/19/2024