State v. Record

• Decision Date: 11 November 1909
• Citation: 65 S.E. 1010,151 N.C. 695
• Parties: STATE v. RECORD.
• Court: North Carolina Supreme Court

65 S.E. 1010

151 N.C. 695

STATE v. RECORD.

Supreme Court of North Carolina

November 11, 1909

Appeal from Superior Court, Randolph County; Long, Judge.

David Record, Sr., was convicted of larceny and of receiving stolen property, and appeals. Affirmed.

Evidence held sufficient to go to the jury.

Morehead & Sapp and George Hannah, Jr., for appellant.

Attorney General Bickett, for the State.

CLARK C.J.

Indictment for larceny and receiving. There was a general verdict of guilty. The defendant's house was searched, and some of the stolen clothing were found hanging on the wall in the defendant's bedroom. His wife said they were her husband's clothes. The witness said that "the defendant was 20 feet outside door in hearing distance." The defendant's exception cannot be sustained. Although the wife is not a competent witness against the husband in the trial of a criminal action, her declarations made in his presence are competent.

In People v. McCrea, 32 Cal. 100, the court says "Admissions and confessions may be implied from the acquiescence of the party in the statements of others made in his presence when the circumstances are such as afford an opportunity to act or speak, and would naturally call for some action or reply from men similarly situated. And it makes no difference that the statements which call for a reply are made by a party who is incompetent to testify." The court cites Rex v. Barlett, 7 Car. & Pay. 832, and Rex v. Smithers, 6 Car. & Pay. 332, where the declarations of the wife made in the presence of the husband were held to be competent against him. In Richards v. State, 82 Wis. 172, 51 N.W. 652, it is said: "After the stabbing from which deceased died defendant's wife said to persons that defendant was guilty of the crime. Defendant was present, and had the same opportunity of hearing the statements as had the other persons, and did not deny them. Held, that such statements were admissions of guilt by acquiescence, and as such might be testified to by the persons present, though the wife was incompetent to testify in the case." "It makes no difference that the statements which call for a reply are made by a party who is not competent to testify because such statements are admitted, not as of themselves evidence of the truth of the facts stated, but simply to show what it is that calls for a reply and the conduct of the defendant himself under the circumstances as indicating an acquiescence in or refutation of the truth of the statement." Abbott Criminal Trial Brief, § 284, p. 561. In State v Bowman, 80 N.C. 432, it is held: "Where declarations were offered as evidence on a trial for murder as having been made in prisoner's presence, and not contradicted by him, it was held to be properly left to the jury to determine whether they were made in his hearing, whether he understood them, what was his conduct on the occasion, and to say what value should be attached to these circumstances as tending to prove the prisoner's guilt." See, also, State v....