Mr. John Devereux, Jr., for the defendant. ( State v. Lawhorn, 88 N.C. 634; State v. Pratt, Ibid., 639; Davis v. Smith, 75 N.C. 115; and State v. Swink, 19 N.C. 14, cited and approved). The following is the material part of the case stated on appeal:
As supporting the cross-examination theory, see Elliott on Evidence, § 216; 40 Cyc. p. 2622. See, also, State v. Babcock, 25 R.I. 224, 55 A. 685; State v. Ellwood, 17 R.I. 763, 24 A. 782; Keaton v. State, 41 Tex.Crim. R., 57 S.W. 1125; State v. Ekanger, 8 N.D. 559, 80 N.W. 482; Schnase v. Goetz, 18 N.D. 594, 120 N.W. 553; Williams v. Commonwealth (Ky.) 52 S.W. 843; State v. Lawhorn, 88 N.C. 634; State v. Taylor, 118 Mo. 153, 24 S.W. 449; State v. Forsha, 190 Mo. 296, 88 S.W. 746, 4 L.R.A. (N.S.) 576; State v. Pratt, 121 Mo. 566, 26 S.W. 556; People v. Putman, 129 Cal. 258, 61 P. 961; Squiers v. State, 42 Fla. 251, 27 So. 864; Redsecker v. Wade, 69 Or. 153, 134 P. 5, 138 P. 485, Ann. Cas. 1916A, 269; State v. Reyner, 50 Or. 224, 91 P. 301; Clemmons v. State, 39 Tex.Crim. R., 45 S.W. 911, 73 Am. St. Rep. 923; Dotterer v. State, 172 Ind. 357, 88 N.E. 689, 30 L.R.A. (N.S.) 846; Parker v. State, 136 Ind. 284, 35 N.E. 1105; Taylor on Evidence (6th Ed.) p. 1244, § 1294; Gillett's Indirect and Collateral Evidence, § 91; Nelson v. State, 3 Okla. Cr. 468, 106 P. 647; Keys v. United States, 2 Okla. Cr. 647, 103 P. 874; Smith v. State, 64 Md. 25, 20 A. 1026, 54 Am. Rep. 752; McLaughlin v. Mencke, 80 Md. 83, 30 A. 603; Mattingly v. Montgomery, 106 Md. 461, 68 A. 205; Clemens et al. v. Conrad, 19 Mich. 170; People v. Higgins, 127 Mich. 291, 86 N.W. 812; People v. Hoffman, 154 Mich. 145,
Such admissions constitute a well established exception to the Hearsay Rule. Stansbury, North Carolina Evidence (Brandis Rev.), 161. As Justice Branch, speaking for this Court, said in State v. Robbins, 275 N.C. 537, 546, 169 S.E.2d 858 (1969): "It is well settled law in this jurisdiction that in a criminal prosecution admissions of fact by a defendant pertinent to the issue which tend to prove his guilt of the offense charged are competent against him. State v. Porth, 269 N.C. 329, 153 S.E.2d 10; State v. Woolard, 260 N.C. 133, 132 S.E.2d 364; State v. Abernethy, 220 N.C. 226, 17 S.E.2d 25; State v. Lawhorn, 88 N.C. 634. * * * The testimony here offered tended to establish motive on the part of defendant to commit the crime and to otherwise establish his guilt.
It was held that the questions were permissible for the purpose of impeaching the defendant as a witness. Three of the decisions cited in Maslin, namely, State v. Garrett, 44 N.C. 357 (1853), State v. Lawhorn, 88 N.C. 634 (1883), and State v. Holder, 153 N.C. 606, 69 S.E. 66 (1910), held that, for impeachment purposes, a witness, including the defendant in a criminal action, may be asked on cross-examination whether he has been convicted of unrelated criminal offenses. No case cited in Maslin decided or considered whether it was permissible to cross-examine the defendant as to prior or pending indictments against him.
It is well settled law in this jurisdiction that in a criminal prosecution admissions of fact by a defendant pertinent to the issue which tend to prove his guilt of the offense charged are competent against him. State v. Porth, 269 N.C. 329, 153 S.E.2d 10; State v. Woolard, 260 N.C. 133, 132 S.E.2d 364; State v. Abernethy, 220 N.C. 226, 17 S.E.2d 25; State v. Lawhorn, 88 N.C. 634. The case of State v. Hopkins, 154 N.C. 622, 70 S.E. 394, is factually similar to the instant case.
It seems to be well-settled law in this jurisdiction that the declarations, statements, and admissions of a defendant of facts pertinent to the issue, and tending, in connection with other facts, to prove his guilt of the offense charged, are competent against him in a criminal action. S. v. Bryson, 60 N.C. 476; S. v. Lawhorn, 88 N.C. 634; S. v. Abernethy, 220 N.C. 226, 17 S.E.2d 25; S v. Ragland, 227 N.C. 162, 41 S.E.2d 285; S. v. Artis, 227 N.C. 371, 42 S.E.2d 409; Stansbury, N.C. Evidence, 2d Ed., sec. 167, particularly pp. 427-429; Wharton's Criminal Evidence, 12th Ed., Vol. 2, sec. 400. Even if we concede that the alleged statements of defendant on 31 December 1962, whose retention in evidence defendant challenges, were not pertinent in part or in whole to the issue raised by his plea of not guilty to the charge of operating an automobile that night with an improper muffler, and consequently were incompetent in evidence, yet it is utterly manifest the retention in evidence of such alleged statements by defendant was not prejudicial to him on that charge because he was acquitted on that charge.
The answer of each defendant that he had been so convicted and sentenced for robbery was clearly competent as affecting his credibility as a witness. S. v. Lawhorn, 88 N.C. 634; S. v. Holder, 153 N.C. 606, 69 S.E. 66; S. v. Colson, supra; S. v. King, 224 N.C. 329, 30 S.E.2d 230. The challenged portion of the charge is merely a statement of what each defendant admitted as a fact on cross-examination, and the assignment of error thereto is overruled
It is clear that there are two methods of proving the bad character of the defendant when he becomes a witness in his own behalf, first, by witnesses who testify that they know his general character, and, second, by cross-examinations as to particular acts of which the defendant has been guilty, which tend to impeach his character. S. v. Lawhorn, 88 N.C. 634. It is not the practice in this jurisdiction to limit the cross-examination for the purpose of impeachment to felonies, or to crimes involving moral turpitude.
This position is in accord with the general rule. S. v. Davidson, 67 N.C. 119; S. v. Lawhorn, 88 N.C. 634; S. v. Robertson, 166 N.C. 356. There may be conditions under which the rule will not be excluded by the statutory inhibition against the disclosure of confidential communications between husband and wife during their marriage.
It is provided by C. S., 1799, that a defendant on trial in this jurisdiction, charged with a criminal offense, is, at his own request, but not otherwise, a competent witness to testify in his own behalf, but every such person examined as a witness "shall be subject to cross-examination as other witnesses," and he waives his constitutional privilege not to answer questions tending to incriminate him. S. v. Simonds, 154 N.C. 197, 69 S.E. 790; S. v. Allen, 107 N.C. 805, 11 S.E. 1016. He may be asked impeaching questions. S. v. Thomas, 98 N.C. 599, 4 S.E. 518; S. v. Lawhorn, 88 N.C. 634. And whether he has not been convicted of offenses calculated to affect his standing as a witness.