State v. Adams, 193 N.C. 581 (1927)

April 20, 1927 · Supreme Court of North Carolina

193 N.C. 581

STATE v. J. Q. ADAMS.

(Filed 20 April, 1927.)

1. Ci’iminal Daw — Evidence—Character—Impeaching Evidence.

Where a defendant has not testified in his own behalf, his general character has not been put in issue, and it is reversible error for his wife to'testify against it as to particular instances.

2. Cx’inxinal Daw — Evidence—Impeaching Evidence — Husband and Wife.

Upon the trial of an assault with attempt to commit rape, testimony of the defendant’s wife in effect that he had theretofore been several times arrested for a criminal offense, is erroneously admitted as tending to impeach his character in a criminal action.

Criminal action, tried before H. L. Godioin, Emergency Judge, at November Special Term, 1926, of Surry.

The defendant was tried upon a bill of indictment charging rape. The verdict of the jury was, “Guilty of assault and attempt to commit rape,” and thereupon the verdict was entered upon the record of the court as “Guilty of assault with intent to commit rape.”

From judgment, sentencing tbe defendant to tbe State’s prison for a term of ten years, be appealed, assigning errors.

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

Folger & Folger for defendaovt.

Brogden, J.

The defendant did not testify in bis own bebalf, but bis wife, among other witnesses, testified in bis bebalf. Upon cross-examination of tbe wife, tbe solicitor asked ber tbe following question, referring to ber busband, tbe defendant: (Q.) “Tbat wasn’t tbe first time be bad been up, was it?” (A.) “No, sir; because I thought be bas been jerked up more times than one unjust.”

Tbe effect of tbis evidence was to put before tbe jury tbe fact tbat tbe defendant bad previously been charged with or arrested for crime. For all practical purposes, tbis amounted to proving tbe bad character of tbe defendant by-proof of specific acts, or impeaching bis character when be bad not testified in bis own bebalf.

In S. v. Holly, 155 N. C., 485, tbe Court bas held tbat a defendant charged with crime may offer evidence of bis good character, and thereupon tbe State may offer evidence of bis bad character, “but cannot, by cross-examination or otherwise, offer evidence as to particular acts of misconduct.” Tbis rule is both sound and salutary, for tbe reason tbat it obviates a mass of collateral questions which would interminably prolong trials and inevitably result in drawing tbe minds of tbe jurors far afield from tbe merit of tbe case. S. v. Bullard, 100 N. C., 487; Marcom v. Adams, 122 N. C., 222; Coxe v. Singleton, 139 N. C., 362; S. v. Murdock, 183 N. C., 779; S. v. Colson, ante, 236; S. v. Canup, 180 N. C., 739.

Tbe evidence was incompetent in another aspect, for tbe reason tbat tbe wife cannot testify against tbe busband in a criminal action of tbis nature. It cannot be successfully maintained tbat tbe testimony complained of was “not against tbe busband,” because it tended directly to impeach tbe husband’s character. S. v. Harbison, 94 N. C., 885; S. v. Raby, 121 N. C., 682; Grant v. Mitchell, 156 N. C., 15; Powell v. Strickland, 163 N. C., 394; S. v. Aswell and Smith, ante, 399.

There are other serious exceptions in tbe record, but, as a new trial must be awarded, they will not be discussed, as they may not occur at tbe subsequent trial.

New trial.