State v. King

• Decision Date: 24 May 1944
• Docket Number: 650.
• Citation: 30 S.E.2d 230,224 N.C. 329
• Parties: STATE v. KING.
• Court: North Carolina Supreme Court

30 S.E.2d 230

224 N.C. 329

STATE v. KING.

No. 650.

Supreme Court of North Carolina

May 24, 1944

Harry McMullan, Atty. Gen., George B. Patton and Hughes J. Rhodes Asst. Attys. Gen., for the State.

R R. King and Clifford Frazier, of Greensboro, for defendant appellant.

SEAWELL Justice.

The defendant was tried in the Municipal County Court of the City of Greensboro upon a warrant charging him with operating a lottery in the City of Greensboro and having in his possession 'tickets, certificates or orders' used in the operation of said lottery, in violation of Chapter 434 Public Laws of 1933, and convicted of this offense. A sentence of six months upon the roads, suspended upon payment of the costs and fine, totalling $175, was imposed. The defendant appealed to the Superior Court, and at a regular term of the said Superior Court, presided over by Johnson, Special Judge, the cause was brought to trial and the defendant was again convicted and sentenced to the roads. From this judgment, defendant appealed.

In the argument here, counsel for defendant challenged the validity of the trial in two aspects: The refusal to allow judgment as of nonsuit upon the demurrer to the evidence; and the rejection of record evidence of the prior convictions of State's witness G. M. Sneed of several violations of the criminal law, which, it is contended, went to his credibility as a witness.

Sneed was a plain clothes man on the police force of the City of Greensboro, assigned to the investigation and detection of defendant's operations in violation of the lottery laws, and the State relied principally upon his testimony for conviction.

1. Sneed testified that he saw the defendant in the act of operating tip boards, selling tickets therefrom, comparing them with the sealed or winning number, and paying off the winners. This was certainly sufficient to take the case to the jury.

2. On cross-examination of Sneed, numerous impeaching questions were addressed to him and variously answered, substantially as follows:

Q. I ask you if you did not get two years on the roads, suspended on the condition that the defendant pay $3.00 a week to the Clerk of Superior Court for the use of Rilmer. Have you got a daughter named Rilmer, or is that your wife? A. That is my wife.

'Q. 'And upon failure, sentence to become operative. Defendant to remain of good behavior.' Was that not the sentence they gave you? A. I am not positive.

'Q. On November 2, 1936, you were indicted for the possession of liquor, called and failed. How about that? A. Indicted for liquor and ran away.

'Q. Let me ask you another, I ask you if they did not have you up again for assault on a female, and you plead guilty, six months on the roads, suspended on condition that you not assault your wife any more. How about that? A. We were in family trouble.

'Q. In that order, they said you were to pay one-half of your weekly wages received from the Shoaf-Sink Hosiery Mill to be paid to Rilmer Sneed? A. I remember paying her on some occasion, but I don't remember the date. She went up and taken all that up.

'Q. I ask you if you were not convicted that time of going over and going into the house and causing trouble with her, and if you did not come up and plead guilty? A. I would not say.

'Q. See if you remember this. On November 27, 1939, I ask you if you were not indicted again for assault on a female and came up and plead guilty and got six months on the roads for that? A. Not as I know of.

'Q. Coming on to May 27, 1940, at that time, you got so drunk that you were guilty of disorderly conduct. They had you up for that? A. I was drunk; yes, sir.

'Q. And you were disorderly? A. I don't remember about that.

'Q. Did you not plead guilty May 27, 1940, for disorderly conduct and judgment was suspended for twelve months? A. I don't know anything about it.

'Q. So out of all those occasions that I have just read to you, will you swear that you were not up every time that I asked you about and that they did not give you the judgments that I read to you? What I want to know, is that record right or wrong? A. So far as my knowledge, it is wrong.'

When defendant's turn came to present evidence, he caused to be identified and offered in evidence certain records from Davidson County for the purpose of showing that witness had been convicted of various specified offenses, including unlawful possession of liquor, assault on a female, failure to provide support for his wife and child, and disorderly conduct. The proffered evidence was ruled out, and as to each item so excluded defendant excepted.

There are other exceptions which we find it unnecessary to discuss, as they present no novel features.

The question presented is whether a witness, not himself a party, may be impeached by record evidence of his conviction of crime, introduced either in contradiction of his denial thereof, or independently as evidence going to his credibility.

The admission of extrinsic evidence, particularly record evidence of conviction of crime, for the purpose of impeaching a witness is, under varying conditions and limitations, rather general in this country. In some jurisdictions its introduction is authorized and controlled by statute; in others, by rules of evidence locally recognized. The practice has not been adopted here, and the uniform usage of the courts, existing over a long period, may be regarded as unfavorable to the recognition of this made of proof. Moreover, the test ordinarily applied here--that of general character, which with us means reputation--is based upon a consistent theory, which prefers an estimate of character based on the current experience of the community in which the witness lives, rather than proof of particular acts--a sort of mosaic pattern built up before the jury out of heterogeneous piece-material, often of doubtful significance and of little relevancy.

Therefore, our courts do not permit the witness to be impeached by independent evidence of particular misconduct. Barton v. Morphes, 13 N.C. 520; State v. Bullard, 100 N.C. 486, 6 S.E. 191; Nixon v. McKinney, 105 N.C. 23, 11 S.E. 154; State v. Warren, 124 N.C. 807, 32 S.E. 552; State v. Arnold, 146 N.C. 602, 60 S.E. 504; State v. Holly, 155 N.C. 485, 71 S.E. 450; State v. Maslin, 195 N.C. 537, 143 S.E. 3; State v. Colson, 194 N.C. 206, 139 S.E. 230; State v. Winder, 183 N.C. 776, 111 S.E. 530; State v. Bailey, 179 N.C. 724, 102 S.E. 406. A somewhat different rule applies to cross-examination, where the purpose, as Wigmore puts it, is to 'sift the witness.' There questions relating to crime and anti-social conduct are freely allowed. But the latitude allowed is peculiar to cross-examination--no doubt a survival of a franker age, of rough-and-tumble practice, with few holds barred. And here, the answers of the witness are regarded as collateral to the issue and the examiner is bound by them.

In this connection, we may say much criticism has been directed at the latitude allowed on cross-examination, especially in quizzing the witness as...