Lee v. Thornton

• Decision Date: 10 October 1917
• Docket Number: 249.
• Citation: 93 S.E. 788,174 N.C. 288
• Parties: LEE v. THORNTON ET AL.
• Court: North Carolina Supreme Court

93 S.E. 788

174 N.C. 288

LEE v. THORNTON ET AL.

No. 249.

Supreme Court of North Carolina

October 10, 1917

Appeal from Superior Court, Wake County; Devin, Judge.

Action by Elwood H. Lee against F. J. Thornton and others. From the judgment entered, defendants appeal. No error.

Where defendant summoned witness without notifying him of court's order excluding witnesses, and such witness remained in courtroom during examination of a witness defendant waived right to put such witness on stand.

Douglass & Douglass and Armistead Jones & Son, all of Raleigh, for appellants.

Peele & Maynard, of Raleigh, for appellee.

CLARK C.J.

At the beginning of the trial the court made an order excluding all witnesses in this cause from the courtroom until called to the witness stand. When the witness Dr. Pope was called to the stand objection was made on the ground that he had remained in the courtroom during the examination of the witnesses, which he admitted in reply to a question by the court. The court found as a fact that:

"This witness, in violation of the instructions of the court to exclude all witnesses, came into the courtroom and remained here an hour during the examination of the defendant Mason (in whose behalf he was called as a witness). The court, in its discretion, declined to allow the witness to testify."

The counsel for the defendants then stated that they proposed to introduce Dr. Pope as a witness for the defendant Thornton and not for the defendant Mason, who was testifying when the said Dr. Pope was in the courtroom. The court then stated it would allow the witness to testify as a character witness if desired by the defendants, and allowed counsel to state what they proposed to prove by this witness. The defendants stated that:

They "proposed to prove by him that he was a practicing physician; had been in attendance on Jim Lee, and saw him often about the time of the execution of the Mason and Thornton deeds; that he had frequent conversations with him in reference to the conveyance of his property; that his mind was clear in respect thereto, and that he knew what he was about, and that in his opinion he was competent in every respect to make a deed and understood the value of his property."

It is of the utmost importance to keep the administration of justice pure at its source. When it is made to appear to the presiding judge that there is danger of the collusion of witnesses, if allowed to remain in the courtroom, by hearing each other's testimony, it is within his discretion to direct the witnesses to be separated. This is a matter of which the presiding judge must judge, and except in cases of abuse of his discretion such order is not reviewable. State v. Hodge, 142 N.C. 682, 55 S.E. 626; State v. Lowry, 170 N.C. 734, 87 S.E. 62. No harm can come from separation of the witnesses, and much injury might result if it is not done when it is made to appear to the presiding judge that there may be collusion among the witnesses, tracking each other's testimony, like sheep jumping over a fence.

The objection that the defendants had the right to face the witnesses against them has no application for this was a witness on their behalf. The law is thus summed up in 38 Cyc 1369:

"The separate examination of the witnesses at the trial is a matter within the discretion of the court, which may order witnesses to be separated and examined, each out of the hearing of the others, or that a witness be excluded while the deposition of another witness is read. The discretion of the court will not be reviewed on appeal, unless there is a manifest abuse thereof."

It is further said:

"As to whether a particular witness or witnesses should be released or excepted from the rule is within the sound discretion of the court. Where a witness is excused from the rule on the statement of counsel that he will not be called as a witness, it is not an abuse of discretion on the part of the court to decline to permit him to testify even as an impeaching witness. And where witnesses are put under the rule, and excluded from hearing the testimony, there is no error in refusing to allow a physician summoned as a witness by defendant to hear plaintiff's testimony so that he may be used as an expert."

These propositions are all sustained by numerous citations in the notes, and the last paragraph is almost the same proposition as in the case at bar.

There is no inherent right that witnesses may hear each other testify and when the court thinks the interest of justice requires that by separation they should be prevented from doing so lest there be collusion among them, the order must be obeyed, and if it is not the court can enforce the protection against colluded testimony by excluding such witness from the witness stand. This point was expressly passed upon and so held in State v. J. H. Hodge, 142 N.C. 681, 55 S.E. 793, where the appellant was convicted of murder in the first degree, and this court said:

"We are asked to give a new trial, not for any material evidence excluded, but because the defense states that there was material evidence excluded, and that by a witness who was kept in the courtroom contrary to the order of the court and without the knowledge of the court. * * * In an indictment for homicide in Massachusetts it was held, upon similar facts, that the exclusion of the witness was in the discretion of the court, though there the evidence was disclosed. Commonwealth v. Crowley, 168 Mass. 121 . And the same was held in S. v. Gesell, 124 Mo. 531 ; Whart. Cr. Ev. (9th Ed.) 446; Greenl. Ev. (16th Ed.) 432c; Holder v. U. S., 150 U.S. 91 [14 S.Ct. 10, 37 L.Ed. 1010]; O'Bryan v. Allen, 95 Mo. 75 [; Jackson v. State, 14 Ind. 327; Bell v. State, 44 Ala. 393; Bird v. State, 50 Ga. 589."

A writ of error in State v. Hodge, was applied for and refused by the United States Supreme Court. State v. Hodge was approved in State v. Lowry, 170 N.C. 734, 87 S.E. 62, where the court said:

"The prisoners also except because after the court had made an order that no witness for the state or for the prisoners should be allowed in the courtroom during the trial, a witness for the state who remained in the courtroom was permitted to testify. The prisoners moved for a nonsuit on that ground, and also to set aside the verdict, and excepted to the denial of these motions. But it is a matter in the discretion of the court whether such witness shall be examined or not. 12 Cyc. 547. The same point was made in State v. Hodge, 142 N.C. 676 , and it was held that this was a matter which rested in the discretion of the presiding judge. The same ruling was made in State v. Sparrow, 7 N. C. 487, and Purnell v. Purnell, 89 N.C. 44, and is stated as settled law in the text-books, 1 Greenleaf Ev. §§ 431 and 432, and notes, and 2 Bishop, New Criminal Proceedings (2d Ed.) §§ 1191 to 1193a."

"The exclusion of witnesses from the courtroom is a matter in the discretion of the court, and not a matter of right. It may be ordered by the court on its own motion, but it is usual for the state or defendant to ask for it." 12 Cyc. 546.

The defendant contends that this witness was summoned after the general order was given. The judge could not know that such witness was summoned, or that he was in the courtroom, and the defendant was derelict in that he or his counsel did not direct the officer in summoning the witness to inform him of the rule of the court excluding witnesses from the courtroom. If this negligence were tolerated, then such orders by the court could be easily evaded and made nugatory, and the desired protection of a fair trial vitiated. The defendants further urge that if the order is disobeyed there could be punishment for contempt. This witness could not be so punished, for the defendants did not notify him of the judge's order. And even where the witness knowingly disobeys the rule,...