State v. Rhyne

• Decision Date: 08 December 1891
• Parties: State v. Rhyne.
• Court: North Carolina Supreme Court

13 S.E. 943

109 N.C. 794

State v. Rhyne.

Supreme Court of North Carolina

December 8, 1891

Appeal from superior court, Gaston county; Jesse F. Graves, Judge. Affirmed.

Prosecution against Rhyne for larceny. Defendant was convicted, and appeals.

On a prosecution for larceny, a witness for the state testified that on one occasion there was a two-dollar bill in the cash drawer when he went to dinner; that defendant was the only clerk left in the store; and that when witness returned the bill was gone. It was not shown that defendant was charged with taking the bill. Held, that a question, on cross-examination, as to whether, on witness' return to the store, he asked defendant what had become of the bill and what his reply was, was properly ruled out.

Geo. F Bason, for appellant.

The Attorney General, for the State.

Clark J.

The state offered as a witness a clerk in the store of the prosecutors, who testified that on one occasion when he went to dinner there was a two-dollar bill in the cash-drawer that when he left the store the defendant was the only clerk left there; and that when witness returned from dinner the two-dollar bill was gone. On cross-examination, this witness was asked if he inquired of defendant upon his return to the store what had become of the two-dollar bill, and if defendant gave any explanation. The evidence on objection was ruled out, and defendant excepted. There was much other evidence not objected to.

If the state had brought out that the defendant was accused of the crime, it would have been competent for the defendant to have rebutted the implied admission of guilt which might have been argued from his silence by giving his reply. State v Patterson, 63 N.C. 520; State v. Worthington, 64 N.C. 594. But it was certainly not competent for the defendant to give in evidence the fact that he was so charged for the purpose of giving his unsworn declarations, when they were no part of the res gestae. State v. Scott, 8 N. C. 24; State v. Hildreth, 31 N.C. 440; State v. Brandon, 53 N.C. 463; State v. McNair, 93 N.C. 628. He could not thus make testimony for himself. Had the defendant testified that the charge was untrue, he could have shown, as corroborative evidence, either by himself or by this witness, that he made a similar statement when first charged. State v. Whitfield, 92 N.C. 831. But this evidence is neither asked to rebut an implied admission from his silence...