Ingle v. Roy Stone Transfer Corp., 853

Decision Date25 August 1967
Docket NumberNo. 853,853
CourtNorth Carolina Supreme Court
PartiesJ. Zeb INGLE v. ROY STONE TRANSFER CORPORATION and Billy Jack Harbour.

Smith, Leach, Anderson & Dorsett by C. K. Brown, Jr., Raleigh, H. Clay Hemric, Burlington, for plaintiff appellant.

Smith, Moore, Smith, Schell & Hunter by Stephen P. Millikin, Greensboro, for defendant appellees.

SHARP, Justice.

For the purpose of impeaching plaintiff's witness Carter, counsel for defendant asked him if he had not 'been convicted of several criminal charges.' Over plaintiff's objection, counsel elicited from Carter that he had been convicted of the following offenses: Speeding 65 MPH in a 55 MPH zone; exceeding a safe speed; drunken driving; operating a motor vehicle while his license was suspended; disregarding a stop sign; public drunkenness; and allowing an unlicensed minor to operate a motor vehicle. Plaintiff's assignments of error 1 and 4 are based upon the admission of this evidence.

Plaintiff argues that convictions for violations of the motor vehicle laws have no direct bearing upon veracity and indicate no moral turpitude. He contends that cross-examination for the purpose of impeaching a witness should be confined to such offenses as false pretense, fraud, cheating, and other crimes indicating a disposition to falsify. He cites the following comment of Seawell, J., made by way of dicta, in State v. King, 224 N.C. 329, 333, 30 S.E.2d 230, 232: 'It would be a barbarous rule which called in question a man's veracity because of the violation of a petty traffic law of which he may not have any knowledge.' The decision in State v. King was that record evidence showing the criminal convictions of a State's witness was not competent for the purpose of impeaching him.

In this State, a witness may be impeached by evidence that his general character is bad or it may be corroborated by evidence that it is good. State v. Troutman, 249 N.C. 395, 106 S.E.2d 569; State v. Ellis, 243 N.C. 142, 90 S.E.2d 225; State v. Nance, 195 N.C. 47, 141 S.E. 468; In re McKay's Will, 183 N.C. 226, 111 S.E. 5; Wilson Lumber and Milling Co. v. Atkinson, 162 N.C. 298, 78 S.E. 212, 49 L.R.A.,N.S., 733; State v. Bullard, 100 N.C. 486, 6 S.E. 191; see State v. King, supra; Stansbury, North Carolina Evidence § 107 (2d Ed., 1963). For the purpose of impeachment, the witness himself is subject to cross-examination as to his convictions of crime. State v. Norkett, 269 N.C. 679, 153 S.E.2d 362 (defendant admitted convictions of assault with a deadly weapon, store breaking, and larceny); State v. Sheffield, 251 N.C. 309, 111 S.E.2d 195 (defendant admitted conviction of robbery); Nichols v. Bradshaw, 195 N.C. 763, 143 S.E. 469 (witness convicted of 'blockading'); State v. Colson, 194 N.C. 206, 139 S.E. 230 (witness cross-examined with reference to violations of the prohibition law and failure to support his wife); Coleman v. Southern R.R. Co., 138 N.C. 351, 50 S.E. 690 (The court said, 'It was competent, to impeach the plaintiff, to show by him that he had been convicted of forcible trespass.').

In State v. Sims, 213 N.C. 590, 197 S.E. 176, defendant, indicted for murder, testified as a witness in his own behalf. On cross-examination, the State drew from him admissions that he had been convicted of 'beating a ride on a fright train' and that he had six times been 'up for gambling' and sentenced therefor. With reference to this evidence, the Court said:

'It is not the practice in this jurisdiction to limit the cross examination for the purpose of impeachment to felonies, or to crimes involving moral turpitude. In fact, cross examination for the purpose of impeachment is not limited to conviction of crimes. Any act of the witness which tends to impeach his character may be inquired about or proven by cross examination.' Id. at 593, 197 S.E. at 178.

These cases, Inter alia, clearly justify the statement in Stansbury, North Carolina Evidence § 112 (2d Ed., 1963) that, for the purpose of impeaching a witness, 'apparently any sort of criminal offense may be inquired about. * * * ' In discussing what crimes are relevant to indicate bad character as to credibility, Wigmore says: 'If in a given jurisdiction general bad character is allowable for impeachment, then Any offence will serve to indicate such bad character.' Wigmore, Evidence § 980, p. 538 (3d Ed., 1940).

Plaintiff would have us change this rule, but, as pointed out by McCormick in his discussion of conviction of crime as a ground of impeachment, much confusion has resulted in those jurisdictions which, by statute, have limited the impeaching effect of convictions to 'infamous crimes' and to those involving 'moral turpitude.' He says:

'The California Code and codes modeled upon it, adopt the limitation to 'felonies,' which is at least simple to apply. Similarly ease of administration is the English description 'any felony or misdemeanor.' This last seems to be the construction which some of the courts place upon the statutes worded in terms of 'crime' or 'any crime.' But most courts, oversensitive perhaps to the feelings of witnesses, have been unwilling to accept such simple mechanical tests, and have read into such general statutes the requirement that as to misdemeanors at least, the offense must be one involving 'moral turpitude.' Thus does the serpent of uncertainty crawl into the Eden of trial administration. Still more uncertain is the situation in the states which leave to the trial judge's discretion whether the particular conviction substantially affects the credibility of the witness. It seems questionable whether the creation of a detailed catalog of crimes involving 'moral turpitude' and its application at the trial and on appeal is not a waste of judicial energy in view of the size of the problem. Moreover, it seems that shifting the burden to the judge's discretion is inexpedient, since only in a minority of cases will the judge have adequate information upon which to exercise such discretion. A clear certain rule like the English one is preferable, despite its somewhat arbitrary cast. Perhaps better still is the proposal of the Uniform Rules to limit impeachment to conviction of crimes 'involving dishonesty or false statement.' a fairly definite, but not arbitrary criterion.' McCormick, Evidence § 43, pp. 90--91 (1954) (Emphasis added).

In 98 C.J.S. Witnesses § 507, pp. 407--408 (1957), (cited by plaintiff as 70 C.J. § 1052 at p. 851) as bearing upon a witness' credibility, we find this statement: '(I)t is usually held improper to show the conviction of a mere misdemeanor or minor offense which does not involve moral turpitude, or an offense which is not regarded as being infamous or crimen falsi in its nature.' The footnotes to the above quotation disclose that in other jurisdictions the following convictions have been held inadmissible for the purpose of impeachment: adultery, burglary of the second degree with sentence to the county jail for six months, disorderly conduct, vagrancy, first conviction for drunken driving of automobile, petit larceny, violation of liquor laws; assault with a deadly weapon where imprisonment was in the county jail; carrying concealed weapons; drunkenness and possession of intoxicating liquor; obtaining money under false pretenses, assault, drunkenness and disorderly conduct, fighting and shooting craps, gaming, operating a motor vehicle while intoxicated, violations of Dyer Act relating to transportation of stolen property, making false tax schedule, prostitution, throwing stones at a railroad train, deserting wife and children, operation of still. These examples, from many states, illustrate the problem posed and point up the diversity of opinion as to what crimes cast doubt upon an individual's credibility and adversely affect his general character. Certainly, a conviction for violating a city ordinance against spitting on the sidewalk would not cast doubt on a person's credibility; neither, ordinarily, will a conviction of speeding 45 MPH in a 35 MPH zone--certainly not if he pled guilty$ We are not prepared to say, however, that a conviction of any one of the majority of the crimes listed in the above C.J.S. footnote would not thereafter cast some doubt upon the credibility of the person convicted, nor do we think that a person who has been guilty of drunken driving, or who consistently violates motor vehicles laws designed to protect life and property on the highway, can claim an unblemished general character.

In McMullen v. Cannon, 129 Ind.App. 11, 150 N.E.2d 765, the plaintiff, who testified in his own behalf, was asked on cross-examination whether he had been convicted of operating a motor vehicle under the influence of intoxicating liquor. The objection of his counsel was sustained upon the ground that the conviction had no bearing on the witness' credibility. In ordering a new trial because of the exclusion of the evidence, the Appellate Court of Indiana said:

'In this state the rule is deeply entrenched in the case law that a witness, including a party to the action who takes the stand as a witness in his own behalf, may be required on cross-examination, as affecting his credibility, to answer as to previous convictions, whether such convictions were of felonies or misdemeanors.

'A reference to the latest annotation on the question, found in 20 A.L.R.2d 1217, section 3 on page 1218, indicates that the courts which have passed on the question are, as usual, divided. It is interesting to note,...

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  • State v. Jones
    • United States
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    ...culpably negligent if he exceeds the posted speed limit or fails to keep a reasonable lookout3. See e.g. Ingle v. Roy Stone Transfer Corp., 271 N.C. 276, 284, 156 S.E.2d 265, 272 (1967)(stating that failing to keep a reasonable lookout coupled with dangerous speed constitutes reckless drivi......
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    ...chief, to offer evidence of her good character and reputation to sustain and strengthen her veracity and virtue. Ingle v. Transfer Corp., 271 N.C. 276, 156 S.E.2d 265 (1967); Lorbacher v. Talley, 256 N.C. 258, 123 S.E.2d 477 (1962); State v. Hooks, 228 N.C. 689, 47 S.E.2d 234 (1948); State ......
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