Devries Co. v. . Phillips and Haywood

63 N.C. 207

• Court: Supreme Court of North Carolina
• Decided: January 5, 1869
• Status: Published

Opinion

Pearson, C. ,J.

That part of the testimony of Cook, in. which he says: “ Jernigan stated that he had bought some-goods of Mr. Haywood” was not admissible, and it was error not to rule it out. This was a mere collateral declaration, as-to a past transaction, and cannot, in any point of view, be considered as a part of the act, to-wit: that Jeringan went to Cook, and rented from him the front part of the store, and. borrowed some boxes to put goods in, and came that day with the goods. His saying, “ he wanted to rent the store to put. some goods in,” was a part of the act, but what he said about, having bought the' goods of Haywood, although it occurred, at the same time, was accidental and collateral: and its truth or falsehood • depended entirely upon his personal veracity-The ruling in State v. Dula, Phil. 211, and the reasoning in that case is so apposite to this question, that it is unnecessary to do more than- to adopt it as our opinion in this case. The only difference is, that there the collateral declaration followed, here it preceded, the act, and, on that account, it was. rather more difficult to separate it; but the principle is the same, and it was the duty of the Court to separate it, and rule it out, so that the jury should not give any weight to it.

For this error, there must be a venire de novo. It is noHt necessary to notice the other points.

Peb Curiam. Venire de novo.