State v. Green, 187 N.C. 466 (1924)

March 26, 1924 · Supreme Court of North Carolina
187 N.C. 466


(Filed 26 March, 1924.)

1. Evidence — Witnesses—Voluntary Statements — Motions—Appeal and Error — Objections and Exceptions.

Incompetent evidence, voluntarily given by a witness and not elicited by the question asked him, should be stricken out, on motion of the objecting party, but his mere exception is insufficient.

*4672. Same — Intoxicating Liquor — Harmless Error.

There was evidence, upon the trial for illicit distilling, that upon information received the officers of the law discovered the defendant engaged in the unlawful manufacture of whiskey: Held,, evidence of how the officers made this discovery, if erroneously admitted, was harmless error.

3. Evidence — Character—Intoxicating Liquor.

Where a witness to the character of another of defendant’s witnesses, upon trial for violation of the prohibition law, has testified that the witness’s character was good, as far as he knew, it is not reversiblé error to defendant’s prejudice for him to add that he did not think it bad character to buy a little whiskey, under an admission that the one concerning whose character he was testifying had gone into the woods with another for that purpose.

4. Evidence — Witnesses—Interest—Instructions.

An instruction, upon the trial of defendant, for unlawfully manufacturing whiskey, when he and his relatives had testified in his behalf, that they should receive their testimony with caution and scrutiny, but if the jury were satisfied that they were telling the truth, it would be their duty to give it the same credit as that of disinterested witnesses, is not objectionable.

Appeal by defendant from Granmer, J., at October Term, 1923, of BeuNswick.

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

John D. Bellamy & Sons for defendant.

Clark, C. J.

Tbe defendant was convicted of manufacturing liquor, or aiding and abetting in sucb manufacture. Tbe evidence showed that tbe defendant was actively engaged in tbe manufacture of liquor at tbe time tbe officers saw him at a distillery, pursued him, and captured him. Tbe distillery bad just been fired up, it was full of mash, and tbe worm bad been connected up. Tbe defendant was tbe only person present at tbe time tbe officer came up within thirty steps of him. He ran, and tbe officer ran after him and caught him. Tbe defendant’s clothing showed that be bad been operating tbe still, be having smut all over bis trousers and shirt, and beer or mash upon bis trousers. He told one of tbe officers that be was operating tbe still when they caught him, and, when carried before tbe justice of tbe peace and asked whether be were guilty, or not, said be was.

Another officer testified that be bad found another still, at which be bad arrested an old negro, named Jim McLean, about a quarter or half a mile from where they found tbe defendant. The witness said: “Jim pointed out tbe direction where we could find tbe defendant and bis still.”

*468The defendant objected to this testimony, wbicb was overruled, and be excepted. There are two reasons why the admission of this statement is not reversible error! First, it was a voluntary statement by the witness, and the only way to take advantage of the error was to move to strike out the testimony and to except to the ruling if this was refused. Instead of doing this, the defendant’s counsel contented himself with a simple objection. Second, the error in admitting this testimony was, under the circumstances of this case, harmless. The defendant himself had twice admitted that he was at the still and was operating it when the officers came up. It was in consequence of what Jim told the officers, they went to the still and found him there, operating it, and not evidence of his guilt.

The second exception was to the cross-examination of a character witness introduced by the defendant. The solicitor sought to test his evidence as to the character of another witness, who, by his own admission, went into the woods with a, man who was manufacturing whiskey, to get whiskey from him. If- there was any error in asking this question, it was eliminated by the answer .of the witness, who answered that the character of the defendant was good, as far as he knew, adding: “I would not like to say that every white man or every colored man who tried to buy a little whiskey had a bad character.”

Exceptions 3 and 4 were because the charge of the judge to the jury was as follows: “It is the law of North Carolina, gentlemen, that when a defendant, or one interested in the verdict of a jury, testifies, it is the duty of the jury to take his testimony with a grain of allowance and carefully scrutinize and scan it; but if, after such scrutiny, you are satisfied he is telling the truth, then it would he your duty to give his testimony the same credibility that you would give the testimony of a disinterested witness. Credibility, gentlemen of the jury, means worthiness of belief.”

This instruction was correct. It has always been so held, and has recently been reaffirmed in S. v. Barnhill, 186 N. C., 446, and in S. v. Williams, 185 N. C., 666. In the latter case the Court said that it was no error where the court told the jury “they should receive the testimony of the defendants and relatives with caution and scrutiny; but if, after such scrutiny, you are satisfied that they are telling the truth, it will then be your duty to give it as much credit as you give the testimony of a disinterested witness.”

In S. v. Barnhill, supra, the Court quoted S. v. Williams with approval, and also many other eases, for they are all uniform in expressing the idea that where defendants or relatives or persons interested in the action testify, the jury should consider their testimony with caution and scrutiny; but if, after such scrutiny, the jury are satisfied they are *469telling tbe truth, it will then be the duty of,the jury to give it as much credit as is given the testimony of a disinterested witness.

In S. v. Nat, 51 N. C., 114, it was held not improper for the judge to say to the jury that “when near relations deposed for near relations, their testimony was to be received, and ought to be received, with many grains of allowance”; and extended the rule to the testimony of the fellow-servants of the prisoner, adding, however, that if, after such scrutiny, the jury believed the witness, they should give as full credit to his testimony as if he were disinterested.

To the same purport, citing many cases, are S. v. Fogleman, 164 N. C., 461; S. v. Byers, 100 N. C., 518, and S. v. Lance, 166 N. C., 418, often cited since.

There is no hard and fast form of expression, or consecrated formula, required, but the jury should be instructed that, as to the testimony of relatives or parties interested in the case and defendants, that the jury should scrutinize their testimony in the light of that fact; but if, after such scrutiny, the jury should believe that the witness has told the truth, they should give him as full credit as if he were disinterested.

In this case the only witness for the defendant (except one character witness) was himself, and he had twice admitted his guilt.

No error.