State v. Page

• Decision Date: 22 March 1939
• Docket Number: 1.
• Parties: STATE v. PAGE.
• Court: North Carolina Supreme Court

1 S.E.2d 887

215 N.C. 333

STATE v. PAGE.

No. 1.

Supreme Court of North Carolina

March 22, 1939

H S. Ward, L. H. Ross, and W. B. Carter, all of Washington, for appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton and Robert H. Wettach Asst. Attys. Gen., for the State.

SCHENCK Justice.

The prosecutrix, Mary McGann, on her direct examination and before any other witness had testified, was allowed, over objection and exception of the defendant, to testify substantially that she now had a living child born to her after the death of her husband, that she and her husband were not divorced and were living together at the time of his death, that she, the prosecutrix, had a job in New York first as an usherette in a theatre and then in a fur factory making coats, that this last job was a seasonal one and expired in March, 1938, and that she got a job with a show in April following because there was no other work for her to be had in New York, and she had to make a living for herself and her one year and eight months old son, who was then living with her mother in Chicago; that she came to Washington, N. C with the show and that her act therein was posing as a model of famous paintings.

This evidence is irrelevant. "The criterion of relevancy is whether or not the evidence adduced tends to cast any light upon the subject of the inquiry." Wharton's Criminal Evidence, 11 ed., Vol. 1, Par. 224, p. 268. "The subject of inquiry" was whether rape had been committed upon the prosecutrix by the defendant, and whether she was widowed and had herself and a young son to support, and for the reason work could not be had in New York she had accepted employment by a show as a model cast no light upon this subject.

However, the mere irrelevancy of the testimony under consideration can not be held for reversible error, and we are confronted with the question as to whether its admission was harmful and prejudicial. Under the facts and circumstances of this case we are constrained to answer in the affirmative, upon the theory that such testimony was calculated to warp the judgment of the jury by creating sympathy for the prosecutrix and exciting prejudice against the defendant.

The prosecutrix is a young white woman, twenty-two years old and was allowed to picture herself as being away from home, working in a show to support herself and infant son, and the defendant is a thirty year old negro man, a follower of the show. It would take little under these circumstances to arouse in the minds of the jury sympathy for the prosecutrix and to excite therein prejudice against the accused, and we cannot but feel that the admission of the testimony assailed had a tendency to and may have brought about such a result, and for that reason was prejudicial to the defendant.

In speaking of the result of the admission of irrelevant testimony, Smith, C. J., in State v. Mikle, 81 N.C. 552, quotes Patton v. Porter, 48 N.C. 539, in reference to a civil case, as follows: "'This was of course improper, and as the jury may have been misled, we think the plaintiffs are entitled to a venire de novo,"' and adds, "Much more forcibly does the rule apply to a conviction for a capital crime, when the verdict may have resulted from the prejudicial effect of the evidence."

In State v. Jones, 93 N.C. 611, Ashe, J., in referring to the result of the admission in evidence, over objection of writs of capias with the Sheriff's return "not to be found", when there was no evidence that the defendant ever resided in the county to which the writs were issued, says: "We are of opinion that the evidence was improperly admitted. It was no evidence of flight. It was therefore irrelevant, and may...