State v. Pulley, 63 N.C. 8 (1868)

June 1868 · Supreme Court of North Carolina

63 N.C. 8

STATE v. JAMES PULLEY and ELLIS WILKERSON.

.A witness for the State (here an accomplice) having been asked upon the .examination, in chief, whether he has not upon some other occasion given a .different statement of the transaction, may thereupon, at the instance of the Solicitor, be permitted to explain why he gave such statement.

The comma, at the end of the word “ store,” in section 2, of Rev. Code, ch. 34, is a misprint; the enrolled bill in the office of the Secretary of State has no such comma, and thus shows that the word is used as an adjective, qualifying the word “ house” which follows.

ARSON, tried before Gilley, J., at Spring Term 1868, of tbe Superior Court of Person.

Upon tbe trial, one Stokes, an accomplice, a colored boy of 16 years of age, was a principal witness to prove tbe commission of tbe crime. On tbe examination in chief, after be bad given an account of tbe transaction, be was asked by the Solicitor if be bad since denied this statement to be true. He answered that on one occasion he bad denied it to a gentleman of tbe bar. Tbe Solicitor then asked why be bad ■denied it. Tbe prisoner’s counsel objected to this question. Tbe Court overruled tbe objection, and allowed tbe witness to say that be denied it in consequence of threats made to him by one Thaxter, a colored man living in Virginia, who though not a preacher, held meetings in Ms neighborhood which one of the prisoners attended.

Verdict, Guilty; Eule for a new trial; Eule discharged; Judgment and Appeal.

Attorney General, for tbe State.

Graham, contra.

Pearson, C. J.

The witness was impeached by tbe position in which be stood before the jury,' — that of an accomplice turning “ State’s witness,” and we can see no reason why the Solicitor for tbe State was not at liberty, by questions asked upon tbe examination in chief, to enable tbe witness to say that be bad made a different statement, and then give an explanation, by stating what was tbe cause of bis doing so. Suppose the matter had been passed over, and the prisoners bad afterwards proved that the witness bad made a different statement: It certainly would then have been proper for tbe Solicitor to recall tbe witness and give him an opportunity of making tbe explanation. What prejudice could, by any possibility, be done to tbe prisoner by tbe course pursued by tbe Solicitor in asking these questions by way of anticipating what be supposed would afterwards come out in tbe course of the trial, in consequence of what had been elicited from the witness by a gentleman of the bar.

The' motion in arrest was based on the manner in which the word “ store” is disconnected by a comma from the word “ warehouse,” as printed in the Revised Code, but upon inspection of the enrolled bill in the office of the Secretary of State, it appears to be a misprint, by the introduction of a comma which is not contained in the enrolled bill. The word “ store” is there plainly used as an adjective, connected with “ ware” by the disjunctive “ or,” both being added to the word “ house” — thus, “ store or ware house,” whereas, as printed the word “ store” might be considered as used for a substantive. Upon an inspection of the enrolled bill the counsel for the prisoners properly abandoned the motion.

There is no error. This will be certified to the end, &c.

Per Curiam. No error.