State v. Warren

• Decision Date: 29 October 1952
• Docket Number: No. 293,293
• Court: North Carolina Supreme Court
• Parties: STATE, v. WARREN.

Page 763

72 S.E.2d 763

236 N.C. 358

STATE, v. WARREN.

No. 293

Supreme Court of North Carolina.

Oct. 29, 1952

C. W. Beaman and K. A. Pittman, Snow Hill, for defendant, appellant.

Harry McMullan, Atty. Gen., and Samuel Behrends, Jr., Member of Staff, for the State.

DEVIN, Chief Justice.

The defendant assigns error in the ruling of the trial court in the admission of the following testimony elicited by the Solicitor from a State's witness, one of the officers who assisted in making the arrest 'Q. From your observation of him, state whether or not, in your opinion, he was very much under the influence of liquor?

'Objection--overruled--exception.

'A. Yes, sir, his wife was there talking, and she said if he had not been going so slow he wouldn't have been caught.'

At the outset we may observe that it is not entirely clear whether the questioned declaration of defendant's wife, as testified by the witness, referred to the defendant or defendant's witness Vines as having been 'caught.' But as the defendant was the only person caught, in the sense of having been arrested on that occasion, we must assume the wife's statement referred to the defendant.

There was nothing in the record to show that the statement was made in the presence of the defendant. Subsequently the defendant offered his wife as a witness, but she was not asked about the statement attributed to her by the State's witness.

The objection to the question propounded to the witness is without merit. It was competent for the officer to express his opinion that the defendant was intoxicated. State v. Dawson, 228 N.C. 85, 44 S.E.2d 527; State v. Harris, 213 N.C. 648, 197 S.E. 142.

The defendant, however, assigns error in the admission of the answer. The general rule is that if the answer of the witness to a proper question is not responsive and an incompetent statement beyond the scope of the question is added, the proper course is to object to the answer and move the court to strike out the answer or instruct the jury not to consider it. Edgerton v. Johnson, 217 N.C. 314, 317, 7 S.E.2d 535; Hodges v. Wilson, 165 N.C. 323, 81 S.E. 340. This course was not pursued by the defendant in this instance, with the result that the testimony of the State's witness incorporating the declaration of defendant's wife would be regarded as admitted without objection.

But the defendant challenges the competency of the declaration of defendant's wife on the ground that it violates the statutory prohibition of G.S. § 8-57 that neither husband nor wife shall be 'competent or compellable ' to give evidence against the other, and that the court erred in permitting it to be considered by the jury.

Ordinarily failure to object in apt time to incompetent testimony will be regarded as a waiver of objection, and its admission is not assignable as error, but this rule is subject to an exception where the introduction or use of the evidence is forbidden by statute in the furtherance of public policy. State v. Ballard, 79 N.C. 627; State v. Gee, 92 N.C. 756; Broom v. Broom, 130 N.C. 562, 41 S.E. 673; Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933; State v. Reid, 178 N.C. 745, 101 S.E. 104; State v. Aswell, 193 N.C. 399, 137 S.E. 174; State v. Kluttz, 206 N.C. 726, 175 S.E. 81.

In Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933, 935, where evidence rendered incompetent by statute was admitted, the Court said: 'In such case it became the duty of the...