State v. Roberson

• Decision Date: 16 June 1939
• Docket Number: 722.
• Citation: 3 S.E.2d 277,215 N.C. 784
• Parties: STATE v. ROBERSON.
• Court: North Carolina Supreme Court

3 S.E.2d 277

215 N.C. 784

STATE v. ROBERSON.

No. 722.

Supreme Court of North Carolina

June 16, 1939

The defendant was indicted in the Municipal Court of the City of Winston-Salem under a warrant which charged that he "did unlawfully and willfully promote, set on foot, carry on publicly or privately a certain lottery where a game of chance is played." Defendant having been convicted and sentenced, appealed to the Superior Court. When the cause came on for trial in the Superior Court the defendant was again convicted. From judgment pronounced thereon the defendant appealed.

Roy L. Deal, of Winston-Salem, for appellant.

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

BARNHILL Justice.

The State's principal witness, Ed Penn, was arrested with lottery tickets and cash on his person. After being confined in jail for sometime he implicated a number of other persons including the defendant, in violations of the lottery statute in carrying on what is popularly known as a "numbers racket." The witness entered a plea of guilty in the municipal court and testified against the defendant and others. He testified that he was selling numbers for the defendant.

While Penn was confined in jail he asked certain lawyers to tell Eric that he, the prosecuting witness, would give him, the defendant, until in the morning and if he didn't come down and get him out on bond he would call all the police and tell them. "I told them if Eric didn't come down tonight and get me out in the morning I will just let them know who the banker is." The next morning he called in certain of the police and gave information against this defendant and others. The defendant and the others were thereupon arrested and put upon trial, charged with operating a lottery.

Penn entered a plea of guilty, became a State's witness, and testified against the defendant and others. On cross examination he was asked if it was not a fact that after he had testified a nolle pros was entered in his case and no punishment was imposed upon him. On objection this evidence was excluded. The record shows the defendant would have answered in the affirmative. In excluding the evidence the Court did so upon the theory that the amount of punishment does not impeach the witness. On objection the Court likewise excluded an admission of the defendant that at the time he was tried there was a suspended sentence existing against him in the Municipal Court.

The State tendered the Solicitor for the Municipal Court who testified he made no agreement with Penn that if he would testify against the defendant and others he would nolle pros his case. On cross examination he would have stated, if permitted to do so, that officers had made recommendations to him as solicitor about leniency for Penn, and that the case against Penn was nolle prossed.

During the course of the argument of counsel for the defendant in respect to the credibility of the witness Penn he was interrupted by the Solicitor who objected to the argument. The Court sustained the objection and instructed the jury as follows: "Gentlemen of the Jury, there is no evidence to sustain the argument that there is an arrangement by which the witness Ed Penn is trying to or has worked himself out of a hole." The defendant excepted. Following a further colloquy between the Solicitor, counsel for the defendant and the Court, the Court stated: "I thought I made it clear on the question of his meting out punishment. I held and instructed the jury there was no evidence he had done so and that argument was (not) proper. There is no evidence to say whether he was fined, imprisoned, turned loose, or what. He specifically denied that he had entered into some kind of agreement." And further: "The Court instructs counsel nothing occurred in this trial to justify that argument. The State put on the stand the Solicitor from City Court down there to show he didn't have an agreement with him. The witness himself denied it and there is no evidence to the contrary." Counsel: "Didn't Mr. Johnson make a statement about the disposition about the case." The Court: "I specifically ruled out what he did also, for two reasons: One is that it is immaterial and another is that a record was made of it and that would have been the best evidence. I specifically ruled it out, or intended to rule it out, all the way through."

Ordinarily, when a witness is cross examined concerning collateral matters for the purpose of impeachment his answers are conclusive and he may not be contradicted by other evidence. Otherwise, oftentime the trial would be unduly prolonged and the minds of the jury would be diverted from the real matters at issue. State v. Patterson, 24 N.C. 346, 38 Am. Dec. 699; 3 Jones on Evidence, 1530 and 1551; State v. Robertson, 166 N.C. 356, 81 S.E. 689. Likewise, the extent of such cross examination in respect to such matters is within the discretion of the trial court.

This rule does not apply in all its rigor when the cross examination is as to matters which, although collateral, tend to show the bias, interest, favor, animus, hostility, prejudice, temper, disposition or conduct of the witness in relation to the cause or the parties. His answers as to these matters are not to be deemed conclusive, and may be contradicted by the interrogator. State v. Patterson, supra; 28 R.C.L. 614.

Latitude is allowed in showing the bias, hostility, corruption interest or misconduct with respect to the case or other facts tending to prove that the testimony of the witness is unworthy of credit. 3 Jones on Evidence, 1538; 5 Jones, Commentaries on Evidence, 2nd Ed., 4611; 28 R.C.L. 615. "The doctrine of excluding facts offered by extrinsic testimony has never been applied to the subject of bias." 2 Wigmore on...