State v. O'Neale, 26 N.C. 88, 4 Ired. 88 (1843)

Dec. 1843 · Supreme Court of North Carolina

26 N.C. 88, 4 Ired. 88

STATE vs. SAMUEL O’NEALE.

The party, impeachimg a -witness, should enquire of the attacking witness, he has the means of knowing the general character of the witness impeached.

He may answer that question without saying that he knows what a majority of the neighbors say of that witness. S uch is not the only means of acquiring a knowledge of general character.

But the attacking witness cannot be asked by the party introducing him, simply, “ in what estimation the witness impeached was held in his neighborhood.”

Appeal from the Superior Court of Law of Buncombe County, at Fall Term, 1843, his Honor Judge Dick presiding.

This was an indictment for petit larceny. A witness, by the name of Elizabeth Earnest, was examined on behalf of the State. The defendant offered a witness by the name of Kincade, and asked him ifhe knew the general character of Elizabeth Earnest. The witness replied that he did not know whether he did or not. The Court then asked the witnesss, if he knew what a majority of the neighbors said of her. The witness replied, he did not, for she was young when she left his neighborhood, and he had not heard a-majority of her neighbors speak of her in any way. The defendant’s counsel then proposed to ask the witness, if he knew in what estimation Elizabeth Earnest was held in his neighborhood before she left it. The question was objected to by the Solicitor for the State, and over-ruled by the Court, because the witness had already stated that he had not heard a majority of her neighbors speak of her. The defendant was found guilty by the jury, and, having moved for and been refused a new trial, and the Court having pronounced a judgment in pursuance of the verdict, appealed to the Supreme Court.

Attorney General for the State.

Hoke for the defendant.

Daniei, J.

The party against whom a witness is called, may examine other witnesses as to the general charac-tev of the first witness. The regular mode is to inquire, whether they, the attacking witnesses, have the means of Knowing the general character of the former witness. Rockwood’s case, 4 Stat. Tri. 693. Newsom v Hartsink, 4 Esp. Rep. 102. Phil, on Ev. 212. The means of ascertaining E. Earnest’s general character, as enquired of by the Court, are not the o'nly means of ascertaining that character. That would be a means so extraordinary, that it would almost preclude any witness from being attacked as to character. We do not pretend to define the exact means, by which an impeaching witness is to learn the general character of the witness attacked, and this case in our opinion, does not calL for such a definition from this Court.

But then the question put by the defendant’s counsel, “ whether he, Kin cade, knew in what estimation E. Earnest was held in his neighborhood, before she left it ” was on the other hand too much circumscribed. It did not amount to an enquiry, as to her general character before she left his neighborhood. The answer to this question might very naturally have been, “ my estimation of her character was then so and so.” But we know, that such an estimation by the witness himself would not answer the requirements of the law. The counsel did not ask the witness, if he knew in what general estimation E. Earnest was held, for that would have brought him round again to the original question, whether he knew her general character, which the witness had before responded to by stating, that he could not say whether he did or not. And to avoid the same answer, the counsel not only changed the phraseology of the question, but so narrowed its meaning, as to take it out of the rule of law, governing questions as to the character of witnesses. And therefore we think he was properly stopped by the Court; but not for the reason then given by his Honor. The judgment must be affirmed, and this opinion certified.

Per'Curiam, Judgment affirmed.