State v. Davis, 231 N.C. 664 (1950)

March 29, 1950 · Supreme Court of North Carolina

231 N.C. 664

STATE v. MILES HERNDON DAVIS.

(Filed 29 March, 1950.)

1. Criminal Law § 77d—

The record imports verity and the Supreme Court is bound thereby.

2. Criminal Law § 40b—

Defendant is entitled to have evidence of his general reputation as a man of good moral character considered by the jury as substantive proof of his innocence, and an instruction that it constituted “substantive evidence bearing upon the defendant’s credibility as a witness” must be held for reversible error.

Appeal by defendant from Parker, J., October Term, 1949, of Pitt.

Criminal prosecution on indictment charging the defendant with crime against nature.

Verdict: Guilty as charged in the bill of indictment.

Judgment: Imprisonment in tbe State's Prison for a term of not less than five nor more tban seven years.

Defendant appeals, assigning errors.

Attorney-General McMullan and Assistant Attorney-General Bruton for the State.

Albion Bunn for defendant.

Stacy, C. J.

Tbe following excerpt from tbe charge forms tbe basis of one of tbe defendant’s exceptive assignments of error:

“Tbe defendant further contends and says that be has offered evidence that be bears tbe general reputation of being a man of good moral character. Tbe court instructs you that that is substantive evidence bearing upon tbe defendant’s credibility as a witness, that is, bis worthiness of belief when be testified in this case for himself.”

It seems quite probable that something may have been omitted by tbe reporter in transcribing tbe portion of tbe charge here assigned as error. However this may be, tbe record imports verity and we are bound by it. S. v. Dee, 214 N.C. 509, 199 S.E. 730; Gorham v. Ins. Co., 215 N.C. 195, 1 S.E. 2d 569.

Speaking to a similar instruction in the case of S. v. Moore, 185 N.C. 637, 116 S.E. 161, Hoke, J., delivering tbe opinion of tbe Court, commented as follows:

“It is fully recognized in this jurisdiction that in an indictment for crime, a defendant may offer evidence of bis good character and have same considered as substantive testimony on tbe issue of bis guilt or innocence. And where in such case a defendant has testified in bis own behalf and evidence of bis good character is received from him, it may be considered both as affecting tbe credibility of bis testimony and as substantive evidence on the issue. In re McKay, 183 N.C. 226-228; S. v. Morse, 171 N.C. 777; S. v. Cloninger, 149 N.C. 578; S. v. Traylor, 121 N.C. 674; S. v. Hice, 117 N.C. 782.” See, also, S. v. McMahan, 228 N.C. 293, 45 S.E. 2d 340; S. v. Wagstaff, 219 N.C. 15, 12 S.E. 2d 657; S. v. Ferrell, 202 N.C. 475, 163 S.E. 563; S. v. Whaley, 191 N.C. 387, 132 S.E. 6.

Following tbe precedent set in tbe Moore Case, a new trial will be ordered here.

New trial.