Indictment for an assault and battery. Plea, not guilty. Judgment for the state.
The defendant, on the trial, offered in evidence a transcript from the record of a justice of the peace, showing a former conviction of the defendant for an assault and battery, alleged to be the same offence. The transcript was objected to as evidence, because it did not state that some person, present at the commission of the offence, was examined as a witness, or, &c., conformably to the statute. The Court sustained the objection; although the defendant offered, at the same time, to prove by oral testimony that a person who saw the assault and battery was examined on the trial before the justice.
■We think the transcript ought to have been admitted. The testimony given on the trial of a cause is not, in ordinary cases, any part of the record; and we find nothing in the statute in question, requiring any of the evidence to be entered on the justice’s docket in this particular case. Rev. Code, 1831, p. 295. The transcript was admissible; but whether it was, of itself, prima facie sufficient, and made it necessary for the state to prove that the requisite testimony was not given at the trial, is a question not raised in the cause. Supposing that it was incumbent on the defendant in.the indictment to prove, in the first instance, not only the conviction, but also that the proper evidence was before the j ustice, still the j udgment excluding the transcript is erroneous, since the facts relative to the evidence given at the trial might be proved by parol. •
Per Curiam.The judgment is reversed. Cause remanded, &c.