Clarkson, J.
The defendant heretofore was convicted of murder in the first degree, and from the verdict and judgment appealed to this Court, and was granted a new trial. 187 N. C., p. 32. It appears in the record, “And upon the defendant’s application thereafter duly made to said Superior Court of Haywood County, and for good cause found by said court, the said cause was duly removed to the Superior Court of Henderson County for the trial of said issue de novo conformably to the mandate of the Supreme Court.”
The most serious assignment of error by defendant is to the exclusion of the testimony of W. M. Tate, a witness for defendant. The defendant [771] offered this witness to corroborate a previous statement made by him. Defendant, upon his examination as a witness in his own behalf, gave a slightly different version of the incident and conversation testified to by the witness Davis, and denied any recollection of the conversation testified to by the witnesses Dillard Teague and Will Gaddy. He also denied having made any threat against the deceased in the presence of the witness Mull. And the prisoner further testified by questions and answers as follows:
“Q. Your father got all right did he? A. Yes.
“Q. What was your attitude in regard to Brock — how did you feel toward Brock after your father got well? A. I did not think any more about it.”
Tate would have testified as follows: “I know George Love and had a conversation with Love in regard to Bill Brock. It was sometime after Mr. Brock and George’s father had had the trouble, and his father had gotten well, and I met George at the post office and was talking to him, and I said they had better bury this thing, it was not enough to get in trouble with Mr. Brock about, and George said: 'No, Mr. Tate, I am satisfied that my father has gotten well, and I have no more feeling against him.’ ”
This evidence was excluded by the court below. The defendant complains that the exclusion of this evidence was very prejudicial and reversible error.
The statement made by defendant to Tate was not under oath. If defendant had not gone on the stand, this was hearsay evidence and clearly incompetent. As a general rule, when a prisoner goes upon the stand as a witness in his own behalf, he puts his character in evidence, and is subject to impeachment. S. v. Dickerson, ante, 332, and cases cited. “It is competent to show previous consistent statements of a witness to strengthen his credibility.” Belk v. Belk, 175 N. C., p. 75, and cases cited. It will be noted 'that these authorities limit the testimony to the credibility of the witness, in no sense can this be considered as substantive evidence of the truth of the facts any more than any other hearsay evidence.
The testimony of the defendant himself is substantive evidence upon the question of his guilt or innocence. The testimony of Tate would only be evidence bearing on the credibility of the defendant as a witness. S. v. Traylor, 121 N. C., 674; S. v. Cloninger, 149 N. C., 567; S. v. Atwood, 176 N. C., 708; In re McKay, 183 N. C., 228; S. v. Moore, 185 N. C., 640.
In S. v. Moore, supra, 639, it was held: “It is fully recognized in this jurisdiction that in an indictment for crime, a defendant may offer evidence of his good character and have same considered as substantive [772] testimony on tbe issue o£ bis guilt or innocence. And where in sucb case a defendant bas testified in bis own bebalf and evidence of bis good character is received from him, it may be considered both as affecting tbe credibility of bis own testimony and as substantive evidence on tbe issue.”
In S. v. Parish, 79 N. C., p. 614, Reade, J., clearly states it thus: “Tbe rule is, that when tbe witness is impeached — observe, when tbe witness is impeached — it is competent to support tbe witness by proving consistent statements at other times, just as a witness is supported by proving bis character, but it must not be considered as substantive evidence of tbe truth of tbe facts any more than any other hearsay evidence. Tbe fact that supporting a witness who testifies, does indirectly support tbe facts to which be testifies, does not alter tbe case. That is incidental. He is supported not by putting a prop under him, but by removing a burden from him, if any bas been put upon him. HoW far proving consistent statements will do that, must depend upon tbe circumstances of tbe ease. It may amount to much or very little.”
Tbe statements made to Tate were not substantive evidence. It only bad a bearing on tbe credibility of tbe defendant as a witness. From a careful reading of Tate’s testimony, no time is fixed when tbe conversation took place. From what Tate would have said if tbe evidence bad been admitted, it must have been some considerable time before the killing, and sometime before tbe threats, testified to by tbe State’s witnesses, were made. Tbe statement, if consistent, was brought about by Tate with tbe idea of mollifying tbe defendant. We cannot bold the exclusion of this kind of testimony when not shown to have any probative force, too remote under tbe facts and circumstances of this case, prejudicial or reversible.
Tbe next exception and assignment of error is set forth in defendant’s brief, as follows: “Captain R. A. L. Hyatt was examined as a witness for tbe prisoner for tbe purpose of corroborating tbe testimony of certain of tbe prisoner’s witnesses by showing prior statements by said witnesses to tbe said Hyatt of tbe same purport as their testimony upon tbe witness stand. Tbe cross-examination of this witness was conducted by tbe solicitor for tbe Twentieth Judicial District, who, by tbe courtesy of tbe solicitor of tbe Eighteenth District, bad tbe responsible control and direction of tbe prosecution. In tbe conduct of said cross-examination said solicitor first emphasized tbe assistance which this witness bad given to counsel for tbe prisoner in tbe preparation of tbe defense, attention being particularly directed to tbe fact that be bad, under tbe direction of counsel for tbe prisoner, visited and interviewed several of tbe defendant’s witnesses. Tbe solicitor then asked tbe witness if be bad not sent a dozen different people to tbe solicitor to urge him [773] to allow tbe prisoner to plead guilty o£ murder in tbe second degree. Counsel for tbe prisoner1 instantly protested to tbe court that tbe suggestions and implications of tbis question were calculated to be ruinously prejudicial to tbe prisoner and requested tbe court to take appropriate measures to remove tbe prejudice as far as it might be possible to do so. Tbe court thereupon directed tbe stenographer to strike out tbe question and instructed tbe jury not to consider it. Upon tbe coming in of tbe verdict, tbe prisoner moved to set aside said verdict and for a new trial, upon tbe particular ground that tbe prisoner bad suffered prejudice" in tbe matter above set out, which was not removed by tbe court’s direction to tbe stenographer to strike out tbe question and bis instruction to tbe jury not to consider it; that tbe prejudice so suffered by tbe prisoner was irremediable by anything that tbe court bad said or done, or could have said or done, and persisted throughout tbe trial to tbe final undoing of tbe prisoner.” Tbis assignment of error cannot be sustained.
Free access — add to your briefcase to read the full text and ask questions with AI
Clarkson, J.
The defendant heretofore was convicted of murder in the first degree, and from the verdict and judgment appealed to this Court, and was granted a new trial. 187 N. C., p. 32. It appears in the record, “And upon the defendant’s application thereafter duly made to said Superior Court of Haywood County, and for good cause found by said court, the said cause was duly removed to the Superior Court of Henderson County for the trial of said issue de novo conformably to the mandate of the Supreme Court.”
The most serious assignment of error by defendant is to the exclusion of the testimony of W. M. Tate, a witness for defendant. The defendant [771] offered this witness to corroborate a previous statement made by him. Defendant, upon his examination as a witness in his own behalf, gave a slightly different version of the incident and conversation testified to by the witness Davis, and denied any recollection of the conversation testified to by the witnesses Dillard Teague and Will Gaddy. He also denied having made any threat against the deceased in the presence of the witness Mull. And the prisoner further testified by questions and answers as follows:
“Q. Your father got all right did he? A. Yes.
“Q. What was your attitude in regard to Brock — how did you feel toward Brock after your father got well? A. I did not think any more about it.”
Tate would have testified as follows: “I know George Love and had a conversation with Love in regard to Bill Brock. It was sometime after Mr. Brock and George’s father had had the trouble, and his father had gotten well, and I met George at the post office and was talking to him, and I said they had better bury this thing, it was not enough to get in trouble with Mr. Brock about, and George said: 'No, Mr. Tate, I am satisfied that my father has gotten well, and I have no more feeling against him.’ ”
This evidence was excluded by the court below. The defendant complains that the exclusion of this evidence was very prejudicial and reversible error.
The statement made by defendant to Tate was not under oath. If defendant had not gone on the stand, this was hearsay evidence and clearly incompetent. As a general rule, when a prisoner goes upon the stand as a witness in his own behalf, he puts his character in evidence, and is subject to impeachment. S. v. Dickerson, ante, 332, and cases cited. “It is competent to show previous consistent statements of a witness to strengthen his credibility.” Belk v. Belk, 175 N. C., p. 75, and cases cited. It will be noted 'that these authorities limit the testimony to the credibility of the witness, in no sense can this be considered as substantive evidence of the truth of the facts any more than any other hearsay evidence.
The testimony of the defendant himself is substantive evidence upon the question of his guilt or innocence. The testimony of Tate would only be evidence bearing on the credibility of the defendant as a witness. S. v. Traylor, 121 N. C., 674; S. v. Cloninger, 149 N. C., 567; S. v. Atwood, 176 N. C., 708; In re McKay, 183 N. C., 228; S. v. Moore, 185 N. C., 640.
In S. v. Moore, supra, 639, it was held: “It is fully recognized in this jurisdiction that in an indictment for crime, a defendant may offer evidence of his good character and have same considered as substantive [772] testimony on tbe issue o£ bis guilt or innocence. And where in sucb case a defendant bas testified in bis own bebalf and evidence of bis good character is received from him, it may be considered both as affecting tbe credibility of bis own testimony and as substantive evidence on tbe issue.”
In S. v. Parish, 79 N. C., p. 614, Reade, J., clearly states it thus: “Tbe rule is, that when tbe witness is impeached — observe, when tbe witness is impeached — it is competent to support tbe witness by proving consistent statements at other times, just as a witness is supported by proving bis character, but it must not be considered as substantive evidence of tbe truth of tbe facts any more than any other hearsay evidence. Tbe fact that supporting a witness who testifies, does indirectly support tbe facts to which be testifies, does not alter tbe case. That is incidental. He is supported not by putting a prop under him, but by removing a burden from him, if any bas been put upon him. HoW far proving consistent statements will do that, must depend upon tbe circumstances of tbe ease. It may amount to much or very little.”
Tbe statements made to Tate were not substantive evidence. It only bad a bearing on tbe credibility of tbe defendant as a witness. From a careful reading of Tate’s testimony, no time is fixed when tbe conversation took place. From what Tate would have said if tbe evidence bad been admitted, it must have been some considerable time before the killing, and sometime before tbe threats, testified to by tbe State’s witnesses, were made. Tbe statement, if consistent, was brought about by Tate with tbe idea of mollifying tbe defendant. We cannot bold the exclusion of this kind of testimony when not shown to have any probative force, too remote under tbe facts and circumstances of this case, prejudicial or reversible.
Tbe next exception and assignment of error is set forth in defendant’s brief, as follows: “Captain R. A. L. Hyatt was examined as a witness for tbe prisoner for tbe purpose of corroborating tbe testimony of certain of tbe prisoner’s witnesses by showing prior statements by said witnesses to tbe said Hyatt of tbe same purport as their testimony upon tbe witness stand. Tbe cross-examination of this witness was conducted by tbe solicitor for tbe Twentieth Judicial District, who, by tbe courtesy of tbe solicitor of tbe Eighteenth District, bad tbe responsible control and direction of tbe prosecution. In tbe conduct of said cross-examination said solicitor first emphasized tbe assistance which this witness bad given to counsel for tbe prisoner in tbe preparation of tbe defense, attention being particularly directed to tbe fact that be bad, under tbe direction of counsel for tbe prisoner, visited and interviewed several of tbe defendant’s witnesses. Tbe solicitor then asked tbe witness if be bad not sent a dozen different people to tbe solicitor to urge him [773] to allow tbe prisoner to plead guilty o£ murder in tbe second degree. Counsel for tbe prisoner1 instantly protested to tbe court that tbe suggestions and implications of tbis question were calculated to be ruinously prejudicial to tbe prisoner and requested tbe court to take appropriate measures to remove tbe prejudice as far as it might be possible to do so. Tbe court thereupon directed tbe stenographer to strike out tbe question and instructed tbe jury not to consider it. Upon tbe coming in of tbe verdict, tbe prisoner moved to set aside said verdict and for a new trial, upon tbe particular ground that tbe prisoner bad suffered prejudice" in tbe matter above set out, which was not removed by tbe court’s direction to tbe stenographer to strike out tbe question and bis instruction to tbe jury not to consider it; that tbe prejudice so suffered by tbe prisoner was irremediable by anything that tbe court bad said or done, or could have said or done, and persisted throughout tbe trial to tbe final undoing of tbe prisoner.” Tbis assignment of error cannot be sustained.
It is well settled by a long line of authorities that matters of tbis kind are left to tbe sound discretion of tbe court below. Hallman v. R. R., 169 N. C., 132; Massey v. Alston, 173 N. C., 225; Holt v. Mfg. Co., 177 N. C., 170; Maney v. Greenwood, 182 N. C., 579; Brown v. Hillsboro, 185 N. C., 374.
Tbe court below has tbe sound discretion to withdraw or strike out improper evidence or grant a new trial. Tbe authorities are fully cited in S. v. Stewart, ante, 345; 11 Enc. Dig. of N. C. Reports, 961, “Withdrawal of Evidence.” We think by analogy tbis principle applicable here. Tbe motion to set aside tbe verdict was a matter in tbe sound discretion of tbe court below.
It may be noted that Capt. Hyatt testified: “I was born and reared within three miles of Waynesville. I have served on tbe board of education, as county treasurer, as clerk of tbe Superior Court and as captain in tbe National Guard. I was' with tbe board of education two years; _ county treasurer sixteen or eighteen years and clerk of tbe court for one term, and was in charge of tbe military affairs of Haywood County during tbe World War.” He further said be was interested in tbe prisoner’s cause “Purely as a matter of justice, as I looked upon it as a matter of justice to tbe prisoner. I thought be ought to have a fair trial, ought to have justice in tbe courts.” Tbe fact that so prominent a man was taking an interest in tbe prisoner, would have a favorable effect on tbe -jury.
If tbe able and efficient solicitor, in bis zeal and loyalty to tbe State, went further than be should, it was corrected by tbe court.
We have examined tbe charge of tbe court in its entirety, and can find no error in law.
[774] It may be noted that this cause was first tried in Haywood County, and the defendant was convicted of murder in the first degree, on appeal to this Court defendant was granted a new trial. It was then tried in Henderson County, and the jury “for their verdict say that they find the defendant guilty of murder in the first degree, that is, they find him guilty of the unlawful, malicious and premeditated killing of one ¥m. Brock.” The able and humane judge who tried this case gave a careful charge, setting forth fairly the contentions of the parties and the law bearing on the facts. Defendant has been defended by eminent counsel of skill and ability. It has been held by this Court that the exclusion of evidence that was admissible, which wou,ld not change the result is harmless error. Verdicts and judgments are presumed to be right and according to law and justice. Ordinarily the burden is on the defendant to show prejudicial or reversible error. 1 Enc. Dig. of N. C. Reports, p. 701 “Exclusion of Evidence”; In re Ross, 182 N. C., 478; 2 Bishop’s New Criminal Procedure (1913) sec. 1276.
The above doctrine of presumption is well recognized in civil cases and enforced in minor criminal cases, but in capital cases the courts should be slow to observe it on account of the sacredness of human life.
The defendant has twice been tried and convicted by a jury, carefully selected under the law. The theory of the State, which the jury found true beyond a reasonable doubt (eliminating threats on either side), was that the prisoner with deliberation and premeditation, while drinking, about eleven o’clock at night, armed, followed the deceased, who was on his way home, unarmed, beyond the path where the defendant turned out to go to his home, beyond the light and in the darkness of the night shot twice and killed him. The conduct of the deceased toward the defendant’s father, from the record, was inexcusable and reprehensible, but no one in a civilized commonwealth can appeal to the law of the jungle. We base this on the view taken from the facts found by the jury. This finding, under our system of jurisprudence, we are bound by.
The just judge, in commencing his charge to the jury, made these commendable remarks: “You must give no consideration, so far as the facts of the case are concerned, to anything except the testimony given here in this trial; here is the temple of justice, at the threshold of that door, public opinion stands back abashed, it has no part or portion in these proceedings; here pure, simple justice is dispensed freely and alike to all, to the white as well as to- the colored, and to the colored as well as to the white, the poor are bereft of no protection. In the eyes of the law they are all equal, standing upon the same plane, punishable by the same law and protected by the same law.”
On the entire record we can find no prejudicial or reversible error.
No error.