State v. Pope
Decision Date | 19 February 1975 |
Docket Number | No. 7420SC879,7420SC879 |
Citation | 211 S.E.2d 841,24 N.C.App. 644 |
Parties | STATE of North Carolina v. Elvin Claude POPE. |
Court | North Carolina Court of Appeals |
Seawell, Pollock, Fullenwider, Van Camp & Robbins by Bruce T. Cunningham, Jr., Southern Pines, for defendant-appellant.
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Keith L. Jarvis, Raleigh, for the State.
In his sole assignment of error, defendant asserts that the trial court committed reversible error when it allowed the State to impeach its own witness, Richie Nelson Pope, by introducing evidence of prior in-consistent statements made by him.
In State v. Tilley, 239 N.C. 245, 79 S.E.2d 473 (1954), Justice Ervin acknowledged that the rule prohibiting a party from impeaching his own witness was roundly condemned by commentators on the law of evidence, but upheld the rule as being sound in this State and as having received legislative recognition. In its latest pronouncement on this doctrine, the Supreme Court, in State v. Anderson, 283 N.C. 218, 195 S.E.2d 561 (1973), stated: 'This rule, unchanged as to criminal cases, still precludes the solicitor from discrediting a State's witness by evidence that his general character is bad or that the witness had made prior statements inconsistent with or contradictory of his testimony.' 283 N.C. at 224, 195 S.E.2d at 565. Defendant contends that this doctrine controls the disposition of his appeal.
As acknowledged by the Supreme Court, State v. Anderson, Supra, the rule that one may not impeach his own witness was modified in respect of civil cases by the adoption of G.S. § 1A--1, Rule 43(b) of the North Carolina Rules of Civil Procedure. See generally 1 Stansbury, N.C. Evidence § 40 (Brandis rev. 1973). Although the modification of the rule in the civil area has not been carried over by legislative enactment to the criminal area, Dean Brandis notes that '(t)he change on the civil side seems to offer the Court an admirable opportunity to apply the basic principle of the Civil Rules to criminal cases.' 1 Stansbury, N.C. Evidence, § 40 (Brandis rev. 1973).
The rule that defendant contends is dispositive of this appeal is grounded on three bases: a party is bound by his witness' statements; a party guarantees his witness' credibility; a party ought not to have the means to coerce his witness. 3A Wigmore, Evidence §§ 897--899 (Chadbourne rev. 1970). The first basis is no longer defended, State v. Tilley, Supra, 239 N.C. at 251, 79 S.E.2d 473; the second is 'merely the last remnant of the broad primitive notion that a party must stand or fall by the utterances of his witness,' 3A Wigmore, Evidence § 898 (Chadbourne rev. 1970); the third 'cannot appreciably affect an honest and reputable witness,' and consequently is said to be 'of trifling practical weight.' 3A Wigmore, Evidence § 899 (Chadbourne rev. 1970). While we will not undertake an in-depth discussion of the rule, we acknowledge the copious literature by eminent commentators who refute the utility of this rule. See generally 3A Wigmore, Evidence §§ 896--918 (Chadbourne rev. 1970); McCormick on Evidence, § 38 (1972); Ladd, Impeachment of One's Own Witness--New Developments, 4 U.Chi.L.Rev. 69 (1936); Hauser, Impeaching One's Own Witness, 11 Oh.St.L.J. 364 (1950); Comment, 49 Va.L.Rev. 996 (1963); Note, 9 N.C.L.Rev. 41 (1931).
In this case defendant argues that the State attempted to impeach Richie Pope, the defendant's son, by introducing evidence of certain prior inconsistent statements. When Richie Pope took the stand, he immediately disavowed any knowledge of his father's involvement in the theft of the heat pump. He did admit, however, that he had talked to Sheriff Wimberly about the theft of the heat pump. The solicitor then propounded questions to Richie Pope based on what Pope had told Wimberly. Richie Pope responded only by stating that he could not recall or could not remember. Immediately after Richie Pope stepped down, Sheriff Wimberly took the stand and testified as to certain prior inconsistent statements made by Pope. Although impeachment of one's own witnesses through the use of prior inconsistent statements is the most important type of impeachment, McCormick on Evidence, § 38 (1972), it is not recognized in this jurisdiction. See State v. Norris, 2 N.C. 429 (1796); Sawrey v. Murrell, 3 N.C. 397 (1806); Neil v. Childs, 32 N.C. 195 (1849); Hice v. Cox, 34 N.C. 315 (1851); State v. Taylor, 88 N.C. 694 (1883) (Disapproving State v. Norris, Supra); State v. Bagley, 229 N.C. 723, 51 S.E.2d 298 (1949); State v. Tilley, 239 N.C. 245, 79 S.E.2d 473 (1954); Moore v. Moore, 268 N.C. 110, 150 S.E.2d 75 (1968); State v. Anderson, Supra.
At the conclusion of Wimberly's direct examination, defendant objected generally and moved to strike his entire testimony. The trial court denied this motion. Although part of Wimberly's testimony concerned prior inconsistent statements made by Richie Pope, the remainder of his testimony was not objectionable, but was competent and admissible. We believe that the trial court's ruling was correct.
When objections are general, State v. Ledford, 133 N.C. 714, 722, 45 S.E. 944, 947 (1903). The Supreme Court, in Nance v. Telegraph Co., 177 N.C. 313, 98 S.E. 838 (1919), furthermore stated:
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