State v. Taylor

• Decision Date: 20 May 1959
• Docket Number: No. 578,578
• Citation: 250 N.C. 363,108 S.E.2d 629
• Parties: STATE, v. Alex TAYLOR.
• Court: North Carolina Supreme Court

Page 629

108 S.E.2d 629

250 N.C. 363

STATE, v. Alex TAYLOR.

No. 578

Supreme Court of North Carolina.

May 20, 1959

Atty. Gen. Malcolm B. Seawell and Asst. Atty. Gen. Harry W. McGalliard for the State.

E. L. Alston, Jr., Greensboro, for defendant, appellant.

BOBBITT, Justice.

Defendant's assignments of error, directed to the court's denial of his motion for judgment of nonsuit, are overruled. Indeed, on oral argument, defendant's counsel frankly conceded that the evidence, considered in the light most favorable to the State, was sufficient to warrant submission to the jury and to support the verdict. Hence, there is no need to state evidential facts other than those necessary to understand the assignments of error stressed by defendant.

On cross-examination, defendant testified: 'The man I think put the stuff there is Oliver Lucas who lives right behind me.' Again: 'He (Oliver Lucas) came up to the house about two or three days before that to speak to me about this--I guess it's this; I don't know. He wanted to use my garage to put white liquor in and I said 'No.' And he said: 'Well, in case you do see some around there, you won't say anything about it, will you? You won't see it?' or something like that, and as far as I know, I didn't answer him. * * * I told him he couldn't use the garage. As for telling him that he couldn't put it behind the garage, I don't believe I ever answered him. ' Defendant testified that if he had seen Lucas the day preceding the day of his arrest, that is, on August 26, 1958, 'it was off at a distance,' and that he was not 'in Oliver Lucas' presence.'

After defendant had so testified, the State offered an ABC enforcement officer who testified, over objections by defendant, that he had seen the defendant on August 26, 1958, between seven and eight A.M., in company with Oliver Lucas and one Woodrow Jordan, on Union Street in Greensboro; that defendant and Lucas left together in a 1946 Mercury four-door sedan; and that Jordan left in another car.

Defendant's contention that the court erred in admitting the officer's testimony is based upon the premise that it related to a collateral matter and therefore the State was bound by defendant's answer. Relevant to whether the subject of the contradictory testimony relates to a material or a collateral matter, defendant quotes Stansbury, North Carolina Evidence, § 48(3): 'The proper test would seem to be whether the evidence offered in contradiction would be admissible if tendered for some purpose other than mere contradiction; or, in case of prior inconsistent statements, whether evidence of the facts stated would be so admissible.' The 'proper test,' as so defined, is amply supported by cases cited by Professor Stansbury and by defendant. But when this test is applied, it appears that the officer's testimony was competent.

The State's evidence in chief contained no reference to Lucas. Lucas was introduced by defendant as a person who, two or three days before the whiskey was found, had approached defendant with reference to putting nontaxpaid whiskey on defendant's premises and to whom defendant had given no answer as to whether Lucas could put it behind defendant's garage. Indeed, defendant stated frankly that he believed Lucas had put it there. The fact that defendant was seen with Lucas, going off with him in a car, on the morning preceding the morning when the whiskey was found on defendant's premises, considered in connection with the testimony relating to defendant's prior conference with Lucas, was a relevant circumstance...