State v. Garrett

• Citation: 44 N.C. 357
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1853
• Parties: STATE v. WILLIAM L. GARRETT.

44 N.C. 357

STATE

v.WILLIAM L. GARRETT.

Supreme Court of North Carolina.

June Term, 1853.

When a witness is asked, on cross-examination, whether he has not been convicted and punished for an infamous crime, it seems, that he is bound to answer the question.

Where, however, such a question was put, and the Judge left to the witness to choose whether he would answer, and he refused, it was held, That such refusal might be insisted upon by counsel in addressing the jury, as warranting the inference that he was unworthy of credit.

(The cases of the State v. Patterson, 2 Ire., 346; and Bailey v. Poole, 13 Ire., 404, cited and approved.)

THIS was an indictment for MURDER, tried at Spring Term, 1853, of Northampton Superior Court, before BAILEY, Judge.

On the trial, a witness for the prisoner, was asked upon his cross-examination by the Attorney General, whether he had not been indicted, convicted and whipped, in the County Court of Warren, for stealing. The witness was informed by his Honor, that he was not bound to answer the question unless he chose to do so, and he declined to answer. The Attorney General, in his concluding argument to the jury, insisted, although the prisoner's counsel objected to his right to do so, that the witness was unworthy of belief, because of his refusal to answer the questions propounded to him by the State.

There was a verdict of guilty, and judgment against the prisoner. Rule for a new trial--rule discharged, and the prisoner appealed to the Supreme Court.

Moore and Bragg, for the prisoner ,

Attorney General, for the State .

BATTLE, J.

The bill of exceptions presents fairly the point, whether the Attorney General, after having asked the defendant's witness a question tending to his disparagement or disgrace, and which he on that account refused to answer, had the right, in his argument to the jury, to infer from his silence that the witness was unworthy of credit. There is no subject connected with the examination of witnesses on a nisi prius trial, whether civil or criminal, upon which there seems to have been more diversity of opinion and practice in the English Courts, than upon the one now under consideration. Judges of great eminence have refused to permit a question tending to degrade a witness to be put to him. Others have permitted the question to be put, but advised the witness that he was not bound to answer it; while most, but not all of them, have held that no inference to the discredit of the witness could be drawn from his refusal to answer. 1 Stark. on Ev., 172, in note. Roscoe's Crim. Ev., 175 Rose v. Blakemore, 21 Eng. C. L. Rep., 465, and the note thereto. In this State we consider it settled by the case of the State v. Patterson, 2 Ire. Rep., 346, that such a question may be asked; and the Court in that case were inclined to the opinion, though they did not expressly decide, that when the question tended only to the disparagement or disgrace of the witness, but not to expose him to a criminal prosecution, he was bound to answer it. Whether, supposing him not bound to answer, any inference to his discredit arising from his silence can be urged in argument to the jury, is now for the first time, so far as we are aware,...