Allen v. State

21 Ga. 217

Opinion

By the Court.

Benning, J.

delivering the opinion.

[1.] If primary evidence is unattainable, secondary is admissible. This is the general rule. If this rule is to govern, in this case, the secondary evidence about the bail process, was admissible. And there is nothing to show that the rule ought not to govern in the case.

[2.] In Greenleaf on evidence, Sec. 92., Vol. 1, it is said, that “it is not in general necessary to prove the written appointments of public officers. All who are proved to have acted as such, are presumed to have been duly appointed to the office, until the contrary appears; and it is not material how the question arises, whether in a civil or a criminal case, nor whether the officer is or is not a party to the record.” And there is ample authority cited to sustain the statement.

Therefore, the Court below was also right in not requiring the production of a certificate of the Clerk of the Inferior Court to the effect, that the person who acted as constable, had filed his bond as constable, in compliance with the Act of 1850; there having been proof that the person was an acting constable.

This being so, it follows that several of the exceptions were not sufficient; as, the exception to the admission of evidence; the exception-to the refusal to order a verdict of acquittal ; and the exception to the refusal to give the charges requested. These exceptions all rest on the same foundation.

And the charge of the Court was manifestly right The question, whether a proper foundation had been laid for the introduction of secondary evidence, that is, whether it had been shown that the bail process was lost, was a question for the Court, not for the jury. And the question submitted to the jury by the Court, included every question in the case; perhaps even this, not excepted.

We therefore think that the several judgments of the Court below ought to be affirmed.

Judgment affirmed.