State v. Springs

• Decision Date: 20 December 1922
• Docket Number: 401.
• Parties: STATE v. SPRINGS.
• Court: North Carolina Supreme Court

114 S.E. 851

184 N.C. 768

STATE v. SPRINGS.

No. 401.

Supreme Court of North Carolina

December 20, 1922

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

F. R Springs was convicted of unlawfully keeping and receiving spirituous liquors, and he appeals. Reversed, and new trial ordered.

Clark C.J., dissenting.

"Hearsay testimony" incompetent, except in certain cases.

The warrants on which defendant was tried, as finally amended charged an unlawful keeping of spirituous liquors for purposes of sale (article 4, § 3379, C. S.), and unlawfully receiving more than one quart within 15 consecutive days from persons other than common carriers (article 5, § 3385, C S.). There were facts in evidence tending to show that in May, 1921, defendant had rented and occupied a place of business in Monroe, N. C., as undertaker, the house having a front room used as an office and a rear room with a partition made by coffin boxes, and in this rear room there were two beds on opposite sides and with a trunk near each, one of the beds being used by defendant when in Monroe, and the other used, at time place was raided, in February, 1922, by one Walter Moseley, a lodger, occupying as such by agreement with Springs; that defendant had another place of business of same kind in Lancaster, S. C., where he spent about one-half of his time; that plaintiff occupied place in Monroe from May, 1921, to October, 1921, alone, and during that time no complaint was made of place; that in October Walter Moseley, having become dissatisfied with his living place, applied to Springs to have a bed and sleeping room in defendant's place in Monroe, and after that time some complaints were made of disorders at this place; that these complaints were made known to Springs when he had come to Monroe from Lancaster, and he said he would see that it was stopped; that in February, 1922, the officers with a warrant searched Springs' place and found in the rear several empty tin cans along one of the walls, which showed odor of whisky, and in Moseley's trunk at the foot of his bed, on being opened by the officers, there were found eight bottles of whisky from one-half pint to a quart in size; that Springs made no resistance to the search, but assisted therein and, on finding the whisky in Moseley's trunk, Springs said that Moseley must have brought it there.

There was evidence further that, when both defendant and Moseley were under arrest, Moseley said to Springs: "You needn't deny it; we were both in it fifty-fifty," which statement Springs denied. Springs himself, testifying to this, said he did not hear Moseley make this statement, but understood the sheriff, Fowler, to make it, and that he immediately denied it.

There were several witnesses who testified to the good character of defendant both in Monroe and Lancaster, several business men, including an alderman of the city, testifying that, living near and passing Springs' place of business several times a day, they had not noted any disorder, and others that no complaint was made of the place till after Moseley went to stay with him. Over defendant's objection the state was allowed to prove by several witnesses, and same was received as substantive evidence, that Springs' place had a bad reputation for whisky selling. A witness by the name of H. S. Christmas testified that he had a store opposite the Springs place of business, that Springs spends the greater part of his time in South Carolina, his character was good, and that he had never seen any evidence that whisky was being handled at Springs' place when he was there.

There was verdict of guilty, judgment, and defendant excepted and appealed, assigning for error his exceptions duly noted:

First. To the reception of evidence as substantive testimony that the reputation of Springs' place was bad for selling liquor.

Second. That his honor in the charge submitted this as substantive evidence of defendant's guilt.

Vann & Milliken, of Monroe, for appellant.

J. S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

HOKE J.

With certain recognized exceptions, applicable chiefly in civil causes, and unless expressly made so by statute, hearsay evidence is not competent in the trial of issues determinative of substantive rights, a position particularly insistent where such issues involve the life or liberties of the litigant. King v. Bynum, 137 N.C. 491, 49 S.E. 955; Hopt v. People of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262; Queen v. Hepburn, 11 U.S. (7 Cranch.) 290, 3 L.Ed. 348; 1 Elliott on Evidence, §§ 315-319; 1 Greenleaf (16th Ed.) § 99a; Lockhart on Evidence. § 138; Wharton's Criminal Evidence (9th Ed.) § 225.

In testimony of this character, so essentially liable to abuse, the witness is giving, not his own evidence under oath, but what he has heard some other person say, and, among many other reasons, the evidence is objectionable because the declarant, who is the real witness, has not spoken under the sanction of an oath, and the party affected has not been afforded the opportunity to cross-examine the witness. Speaking to some of the principal objections to such evidence, Prof. Greenleaf, supra, says:

"Subject to these qualifications and seeming exceptions (to be later examined), the general rule of law rejects all hearsay reports of transactions whether verbal or written, given by persons not produced as witnesses. The principle of this rule is that such evidence requires credit to be given to a statement made by a person who is not subjected to the ordinary tests enjoined by the law for ascertaining the correctness and completeness of his testimony, namely, that oral testimony should be delivered in the presence of the court or a magistrate, under the moral and legal sanctions of an oath and where the moral and intellectual character, the motives and deportment, of the witness can be examined, and his capacity and opportunities for observation and his memory can be tested by a cross-examination. Such evidence, moreover, as to oral declarations, is very liable to be fallacious, and its true value is therefore greatly lessened by the probability that the declaration was imperfectly heard, or was misunderstood, or is not accurately remembered or has been perverted. It is also to be observed that the persons communicating such evidence are not exposed to the danger of a prosecution for perjury, in which something more than the testimony of one witness is necessary in order to a conviction; for, where the declaration or statement is sworn to have been made when no third person was present, or by a person who is since dead, it is hardly possible to punish the witness even if his testimony is an entire fabrication."

And in Queen v. Hepburn, supra, Chief Justice Marshall, speaking to the subject, said:

"It was very justly observed by a great judge, that 'all questions upon the rules of evidence are of vast importance to all orders and degrees of men; our lives, our liberty, and our property are all concerned in the support of these rules, which have been matured by the wisdom of ages, and are now revered from their antiquity and the good sense in which they are founded.'

One of these rules is that 'hearsay' evidence is in its own nature inadmissible. That this species of testimony supposes some better testimony which might be adduced in the particular case is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover, combine to support the rule that hearsay evidence is totally inadmissible.

To this rule there are some exceptions which are said to be as old as the rule itself. These are cases of pedigree, of prescription, of custom, and in some cases of boundary. There are also matters of general and public history which may be received without that full proof which is necessary for the establishment of a private fact."

The principle referred to and commended by these authorities applies to prosecutions for offenses against the prohibition laws, and in cases like the present is held to exclude evidence of general reputation of the place where the specific offense is alleged to have been committed unless as stated it has been made competent by some valid statute on the subject. Cobleigh v. McBride et al., 45 Iowa, 116; 4 Elliott on Evidence, § 3170; 23 Cyc. p. 251.

In this last citation it is said:

"The character of the place kept by defendant may be shown by circumstantial evidence tending to show the purpose for which it was used or the kind of business carried on there, but evidence of the reputation of the place or what people say as to its character or uses should not be admitted except where a statute makes such reputation a pertinent fact in the prosecution or declares it to be competent evidence."

And there is, too, direct decision with us that, where evidence of the kind in question is incompetent because of being hearsay, the infirmity is not removed by terming it or offering it in corroboration. Holt v. Johnson, 129 N.C. 138, 39 S.E. 796.

In the recent case of State v. McNeill, 182 N.C. 855, 860, 109 S.E. 84, the court was not properly advertent to the well-established and wholesome principle in the laws of evidence excluding hearsay in the trial of causes of this character, and the case in that respect and for that reason must be considered as disapproved.

The case of State v. Price, 175 N.C. 804, 806, 95 S.E 478, to which we were also cited, in no way militates against our present ruling, for the charge there was for vagrancy in keeping a bawdyhouse, and in reference to which our statute, C. S. § 4347, expressly makes the general reputation of the house...