State v. Winder, 183 N.C. 776 (1922)

April 19, 1922 · Supreme Court of North Carolina
183 N.C. 776


(Filed 19 April, 1922.)

1. Juror — Opinion — Impartial Trial — Courts—Discretion—Appeal and Error.

Wliere on tlie trial of a criminal case jurors on tlieir vow dire have stated tliey had formed an opinion of tlie defendant’s guilt, but they could, lay this aside, hear the evidence, the argument of counsel and the charge of the court, and render a fair and impartial verdict according to the evidence, their serving on the jury is a matter within the discretion of the trial judge, and not reviewable on appeal.

2. Evidence — Corroborative—Criminal Law — Statutes—Children—Carnal . Knowledge.

Where the prosecutrix has testified upon the trial for the unlawfully carnally knowing or abusing an innocent female child over twelve and under fourteen years of age (C. S., 4202),'her testimony in answer to the questions of the solicitor, to the effect that she had told her mother on the day of the occurrence, who was the only near relative present, is admissible for the purpose of corroborating her other testimony.

3. Evidence — Witnesses — Cross-Examination —Character—Impeaching Evidence — Criminal Law'.

It is competent for the solicitor in a criminal action to broadly cross-examine the defendant’s witnesses upon their collateral testimony given on their direct examination, tending to discredit the State’s witnesses, the *777limitation ordinarily being that they are not bound to answer questions that might subject them to an indictment or to a penalty under the statute.

4. Appeal and Error — Objections and Exceptions — Instructions—Conten- ' tions.

Exceptions to the statement of the contentions made by the trial judge in his charge to the jury, taken for the first time after trial, in the appellant’s statement of the ease on appeal, afford the trial judge no opportunity for correction, and are not reviewable.

Appeal by defendant from Horton, J'., at November Term, 1921, of PASQUOTANK. '

Attorney-General Maiming and Assistant Attorney-General Nash for the State.

W. L. Gaboon, MeeTcins & McMullan, P. G. Sawyer, and Thompson & Wilson for defendant.

Walker, J.

Tbe defendant was convicted at tbe November Term, 1921, of tbe Superior Court of Pasquotank County, Horton, J., presiding, of tbe statutory crime of carnally knowing a female child (Hattie Puckett) under fourteen years of age, and from tbe j’udgment upon such •conviction, appealed to this Court.

Tbe statute upon which tbe prosecution was based is C. S., 4209, as follows: “If any person shall unlawfully carnally know or abuse any’ female child over twelve and under fourteen years old, who has never before bad sexual intercourse with any person, be shall be guilty of a felony, and shall be fined or imprisoned in tbe State’s Prison, in tbe discretion of tbe court.” Tbe State’s evidence, if accepted as true, was conclusive of defendant’s guilt.

Exception one was to tbe court’s overruling defendant’s challenge to; and refusing to stand aside five jurors, who on their voir dire stated that they bad formed an opinion that tbe defendant was guilty, but could lay this aside, bear tbe evidence, tbe argument of counsel, and tbe charge of tbe judge and render a fair and impartial verdict according to the-evidence. These were competent jurors. This ruling of tbe court is fully sustained by many decisions of this Court, presenting tbe same question.. One of tbe more recent cases is S. v. Terry, 173 N. C., 761, in which it substantially appeared that after challenge to a juror, and upon cross-examination, as well as upon examination by tbe court, tbe juror testified that be .could “eliminate from bis mind all that be bad beard or read, and that be could go into tbe jury box and be governed solely by tbe evidence produced upon tbe trial, and by tbe charge of tbe court, and be could give tbe State and tbe prisoner an absolutely fair *778trial. On examination by tbe judge, tbe juror stated again that he-could render a verdict uninfluenced by any opinion be may bave formed,, or anything that be may bave beard or read. Tbe court in its discretion found tbe said jurors to be impartial, and bad tbem tendered and sworn.. With reference to tbis ruling of tbe court, it was beld in that case to be in “exact accord” with previous decisions of tbis Court, and especially with tbe very recent case of S. v. Foster, 172 N. C., 960, wbicb cites with, approval tbe case of S. v. Banner, 149 N. C., 519, in wbicb tbe same questions were asked and like answers returned as in tbe case now before tbis Court. Tbe decision there was that a juror, having been tested according to tbe standard used in tbe present case, was a competent, juror, and that bis admission to tbe jury box was in tbe sound discretion of tbe judge. S. v. English, 164 N. C., 498. Like ruling was made at tbis term upon practically tbe same state of facts. S. v. Montgomery, ante, 747.

Exception two was taken to tbe solicitor’s question, and tbe answer of' tbe prosecuting witness, Hattie Puckett, as follows: “I told my mother about tbis occurrence Sunday. Q. Was there any one else in your household for you to tell it to. A. No, sir. I bad no sister or brother or father there to tell.” Tbis, of course, may bave bad very little, if any,, probative force. It did tend to show that she told it to tbe only person-accessible to her, who would probably be in her confidence, and as such it was admissible as corroborative of her.

Exceptions three, four, and five were to tbe admission of questions and answers put by tbe solicitor to adverse witnesses on tbe cross-examinations. These were admissible as impeaching tbe witnesses. It is said in S. v. Davidson, 67 N. C., 119: “It is now beld that you. may put almost any question to tbe witness, and that tbe witness is bound to answer it, unless tbe answer might subject him to an indictment, or to a penalty under a statute,” wbicb is approved in S. v. Lawhorn, 88 N. C., 637, and in S. v. Robertson, 166 N. C., 356, at page 360. But there are some exceptions to tbis rule, though not presented in tbis case. Those cases should, however, be considered with S. v. Holly, 155 N. C., 485, and what was said by Justice Allen therein as to collateral testimony upon tbe question of character.

Tbe argument in tbis Court for defendant was confined mainly to the question as to tbe competency of tbe jurors to sit in tbe case, and, we think, properly so, but we bave carefully examined all tbe other exceptions of tbe defendant and find tbem to be so unimportant, if not trivial, in their nature, as not to justify a reversal of the judgment. There was certainly no more than harmless error, if any error at all, in tbe rulings of the judge. Several of tbem were merely explanatory, and admitted in reply to attacks upon tbe State’s witnesses. Tbe State did bave, and *779should have, the right to explain any seemingly wrong imputed to its witnesses. Having allowed the insinuation against their character to be made, or the truth of their testimony impeached, if only in an indirect manner, it was nothing but fair and just that they should be permitted to rebut any implication of wrongdoing against them, or to explain any conduct on their part which was sought to be questioned by the other side so that the jury might hear the whole story and be'more competent to pass upon the credibility of the testimony.

Many exceptions were taken to the statement by the judge of the contentions of the State and the defendant, but the judge, in respect to them, made the following finding: “No objection was made during the charge, or after the same, or at any time during the trial, to any statement or contentions by the court, nor was any correction suggested, all exceptions to statement of contentions and charge being made for the first time in the statement of the case on appeal served 13 January, 1922, the case having been tried November, 1921.” The other exceptions to the charge are clearly without merit. The instructions to the jury were full and complete, presenting the case to the jury in every phase of it, and correctly stated the law bearing upon all questions raised during the course of the trial.

No error.