State v. Hicks

• Decision Date: 01 April 1931
• Docket Number: 322.
• Parties: STATE v. HICKS.
• Court: North Carolina Supreme Court

157 S.E. 851

200 N.C. 539

STATE v. HICKS.

No. 322.

Supreme Court of North Carolina

April 1, 1931

Appeal from Superior Court, Person County; Harwood, Special Judge.

Walter Hicks was convicted of certain violations of the prohibition laws, and he appeals.

Impeaching character witness, after stating that he knows another's general reputation and character, may say it is good or bad or may voluntarily, without suggestion from counsel, amplify or qualify his testimony.

Criminal prosecution tried upon an indictment charging the defendant with violations of the prohibition laws, as follows:

1. Manufacturing intoxicating liquor; also aiding and abetting in its manufacture. C. S. § 3367, and C. S. Supp. 1924, § 3411 (b).

2. Possessing property designed for the manufacture of liquor and intended for use in its unlawful manufacture. C. S. Supp 1924, § 3411 (d); State v. Jaynes, 198 N.C. 728, 153 S.E. 410.

3. Having and keeping in possession spirituous or vinous liquors for the purpose of sale. C. S. § 3379, and C. S. Supp. 1924 § 3411 (b).

The record discloses that on September 9, 1930, officers of Person county discovered three colored men, identified as the defendant, Roy Pearson, and Clarence Williams, at a distillery, all participating in its operation. Roy Pearson was arrested on the spot, while the defendant and Clarence Williams made their escape.

Roy Pearson testified that the defendant and Clarence Williams were with him at the time of his arrest and that he was employed by them to help run the still. He further testified that he made a crop of tobacco with the defendant during the year 1930, but left before it was cured.

The defendant testified that he was at his home in Harnett county on September 9, 1930, pulling fodder, and his alibi was supported by a number of witnesses. He denied having anything to do with the distillery in question, and said that Roy Pearson farmed with him during the year 1930, but left his crop, and he had to finish curing his tobacco.

The defendant then offered S. M. Powell and Amos Mims as character witnesses.

S. M Powell testified:

"I know Roy Pearson. Q. Do you know his general reputation? A. I have seen him passing through and have heard of him and Herbert Spencer stealing chickens and making liquor all summer." Motion by solicitor to strike out answer; motion allowed; defendant excepts.

Amos Mims testified:

"I have heard some people discuss the character of Roy Pearson. Q. If they discussed his character, did they say what it was, good or bad? (State objects; objection sustained.)

"Q. Do you know what people in that community who discussed his character say about it? A. Yes.

"Q. Well, what is it?"

State objects; objections sustained; defendant excepts. Witness would have testified that Roy Pearson's character was bad.

Verdict: Guilty in manner and form as charged in bill of indictment.

Judgment: Sixteen months on the roads, not to wear stripes.

Defendant appeals, assigning errors.

Wm. B. Oliver, of Varina, and Thos. W. Ruffin, of Raleigh, for appellant.

D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY, C.J., after stating the case.

Conceding that the action of the trial court in excluding the testimony of S. M. Powell is sustainable on the ground that the witness had failed to qualify himself by first saying that he knew the general reputation and character of Roy Pearson ( State v. Mills, 184 N.C. 694, 114 S.E. 314), though this may be doubted on a liberal interpretation of the record (State v. Fleming, 194 N.C. 42, 138 S.E. 342), still it would seem that a new trial must be awarded for error in the exclusion of the testimony of Amos Mims. It would be "sticking in the bark" to say that he did not qualify himself as an impeaching character witness. State v. Steen, 185 N.C. 768, 117 S.E. 793.

The rule is that when an impeaching or sustaining character witness is called, he should first be asked whether he knows the general reputation and character of the witness or party about which he proposes to testify. This is a preliminary qualifying question which should be answered yes or no. If the witness answer it in the negative, he should...