State v. . Burton

94 N.C. 947

• Court: Supreme Court of North Carolina
• Decided: February 5, 1886
• Status: Published

Opinion

Ashe, J.

(after stating the facts). We think there was error in excluding the testimony of the witness, Home, by whom it was proposed by defendant to prove what was said by another woman, in the presence and hearing of the prosecutrix, in i’egard to the identity of the person who had committed the assault. The conversation occurred either on the night,' or the night after, the assault, when the circumstances of the transaction were fresh in the memory of the prosecutrix, and before she had made a .statement to any one, so far as appears, as to the person who committed the act, and while there was an inquiry as to the perpetrator.

The doctrine is thus laid down by Taylor on Evidence, §733: “Admissions may also be implied from the acquiescence of the party. But acquiescence of the party, to have the effect of ah admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party, and whether it be acquiescence in the conduct or in the language of others, it must plainly appear, that such conduct was fully known, or such language fully understood by the party, before any inference can be drawn from his passiveness or silence. The circumstances too, must not only be such as afford him an opportunity to act or to speak, but such also as would properly and naturally call for some action or reply, from men similarly situated.”

In Guy v. Manuel, 89 N. C., 83, this Court held, that “to make the statement of others evidence against a party, on the ground of his implied admission of its truth, it must be made on an occasion when a reply from him might properly be expected. State v. Bowman, 80 N. C., 432; State v. Crockett, 82 N. C., 599. Wharton on Evidence, 1136.

It is true, the principles announced by the authorities cited, are applied either to parties to an action, or to defendants charged with crime, but we can see no reason why, by analogy, they should not apply to the prosecutrix in a criminal action, as here, when a violent assult had just been committed, and the inquiry is made as to the person who had committed the act, and it was said in the presence and hearing of the prosecutrix, who had been so recently assaulted, that the person was unknown, it was most natural, and therefore to be expected, that she would, at once say, “I know who did the act.” But she was silent, and it is to be presumed that she did not know, or she would have spoken. It must be admitted, that isa very slight presumption, for she may have had some motive for being passive. But still, it was some evidence tending to impugn the credibility of the prosecutrix, and it should have been submitted to the jury, to be weighed by them for what it was worth, and in the refusal to submit it to the jury, we think there was error.

There were some other exceptions taken in the course of the trial, which we think it unnecessary to consider, as the error on this point, secures to the defendant a new trial.

We have not overlooked an error in the judgment rendered below, which was in the alternative, but as a new trial is to be awarded, that is immaterial, as a proper judgment may be rendered, should the defendant be again convicted.

There is error. Let this be certified to the Superior Court of Granville county, that a venire de novo may be awarded.

Error. Reversed.