State v. Bailey, No. 58

• Decision Date: 10 February 1971
• Docket Number: No. 58
• Citation: 178 S.E.2d 809,278 N.C. 80
• Parties: STATE of North Carolina v. William BAILEY, Jr.
• Court: North Carolina Supreme Court

Page 809

178 S.E.2d 809

278 N.C. 80

STATE of North Carolina v. William BAILEY, Jr.

No. 58.

Supreme Court of North Carolina.

Feb. 10, 1971.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Sidney S. Eagles, and Staff Atty. Russell G. Walker, Jr., for the State.

James R. Rogers, III, Raleigh, for defendant.

BRANCH, Justice.

Defendant first contends that the court erred in permitting the witness White to testify as to the authorship of a letter allegedly written by defendant's witness James McDougal. McDougal testified that he saw the defendant on the morning of the robbery, that the defendant was not himself, and that he appeared to be sick and in pain. On cross-examination McDougal testified that he wanted to help defendant but that he would not do anything dishonest to do so. He denied writing a letter purporting to be from him to the prosecutrix, Loretta Williams, offering her $200 not to identify defendant as the robber. Following this denial, the State, for the purpose of impeachment, called Philip White, a documents examiner for the North Carolina Bureau of Investigation, as a witness. Mr. White testified, over objection, that in his opinion the letter received by Loretta offering her $200 not to identify the defendant as the robber was written by McDougal. The defendant contends that the questions concerning the letter were on a collateral matter and that the State was bound by McDougal's answers.

Ordinarily, a party is bound by the answer of the witness to a question asked on cross-examination as to a collateral matter. In re Gamble, 244 N.C. 149, 93 S.E.2d 66; State v. King, 224 N.C. 329, 30 S.E.2d 230; Stansbury, N.C. Evidence § 48 (2d ed., 1963); 7 Strong's N.C. Index 2d, Witnesses § 8, p. 704. However, to this general rule there are exceptions. The rule does not apply when the questions tend to show bias, interest, or prejudice of the witness. In re Gamble, supra; State v. Hart, 239 N.C. 709, 80 S.E.2d 901; State v. English, 201 N.C. 295, 159 S.E. 318; Stansbury, N.C. Evidence § 48 (2d ed., 1963); 7 Strong's N.C. Index 2d, Witnesses § 8, p. 705.

In State v. English, supra, defendant was charged with the murder of his wife. The wife's father testified for the defendant. The court held that evidence of the wife's father's attempt to bribe another witness was admissible to show the bias of the bribing witness for the defendant. The Court stated: 'Exceptions were also taken to evidence tending to show that the father of the deceased woman, who was a witness for defendant, had attempted to bribe a colored man to implicate two other parties. These exceptions are not sustained. State v. Patterson, 24 N.C. 346; State v. Beal, 199 N.C. 278, 154 S.E. 604.'

Justice Ervin, in State v. Hart, supra, states the reason for the exception to the collateral matter rule as follows:

'Truth does not come to all witnesses in naked simplicity. It is likely to come to the biased or interested witness as the image of a rod comes to the beholder through the water, bent and distorted by his bias or interest. The law is mindful of this plain psychological principle when it fashions rules of evidence to aid jurors in their search after truth. As a consequence, the law decrees that 'any evidence is competent which tends to show the feeling or bias of a witness in respect to the party or the cause,' and that jurors are to consider and weigh evidence of this character in determining the credibility of the witness to whom it relates.

'Where a party cross-examines an adverse witness as to matters which tend to show the partiality of the witness for his adversary or the hostility of the witness toward him, the party is not bound by the answers of the witness denying partiality or hostility, but is at liberty to contradict the witness by the testimony of other persons disclosing such partiality or such hostility. (Citing cases).'

We hold that the testimony of the witness White was competent to show the bias or interest of defendant's witness McDougal.

Defendant assigns as error various portions of the trial judge's charge to the jury. The trial judge initially charged the jury on armed robbery as follows:

'Now ladies and gentlemen of the jury, the defendant in this case is charged with the crime of armed robbery. Armed robbery is the taking of personal property from another by the use of force or intimidation, and by means of a threat to the life of another, accompanied by the use of some weapon. This weapon must be in the possession of the accused at the time of the alleged offense. The State has the burden of convincing the jury beyond a reasonable doubt, one, that the accused took personal property from another or from the presence of another, in this case from the presence of another, in this case from the presence of Loretta Williams; two, that the accused used force or intimidation sufficient to create an apprehensive (sic) of danger; three, that the accused was in possession of and used or threatened to use some weapon and in fact threatened the life of the person from whom the property was taken, or from whose presence it was taken; and, finally, that the accused at the time of the taking, must have had the felonious intent to permanently deprive the owner of that property, and to convert it to his own use, or at least to some use besides that of the owner.'

Later in the charge the trial judge further instructed the jury as follows:

'Ladies and gentlemen of the jury I charge you that if you find from the evidence and beyond a reasonable doubt, the burden being upon the State of North Carolina to so satisfy you, that on the 23rd day of March 1970, the accused, William Bailey, Jr., took personal property, in this case United States money, from Loretta Williams or from her presence, and if you further find that the accused William Bailey, Jr., at that time, used force or intimidation sufficient to create an apprehension of danger; and if you further find that at that time the accused was in possession of, and used or threatened to use some weapon, and in fact threatened the life of the victim; and you further find from the evidence and beyond a reasonable doubt that the accused at the time of the taking of the property, had in his mind the felonious intent permanently to deprive the owner of that property and to convert it to his own use, or at least to the use of another; * * *' Defendant contends that the court erred in its charge by stating that one of the elements of armed robbery was that 'the accused used force or intimidation sufficient to create an apprehension of danger,' without charging that the force or intimidation must be caused by the use or threatened use of a dangerous weapon or firearm, implement or means.

Robbery is the taking, with intent to steal, of...