Opinion
(September Term, 1891.)
Evidence — Competency — Exception to Evidence.
1. In an indictment for embezzlement it is not competent for the defendant, on cross-examination of a witness who had testified that when he left the store there was a two-dollar bill in the drawer and that when he returned it was gone, to ask the witness if he told the defendant of the loss, and what was his explanation of it, the latter being the defendant's declaration in his own interest and not a part of the res gestae.
2. A statement of the evidence expected to be elicited must accompany an exception to the refusal to admit it.
INDICTMENT for embezzlement under section 1014 of Code, tried before Graves, J., at Fall Term, 1891, of GASTON.
The Attorney-General for the State.
G. F. Bason for defendant.
The facts are stated in the opinion.
The State offered as a witness a clerk in the store of the prosecutors, who had testified that on one occasion, when he went to dinner, there was a two-dollar bill in the cash drawer; that when he left the store the defendant was the only clerk left there, and that when witness returned from dinner the two dollar bill was gone. On cross-examination, this witness was asked if he inquired of defendant upon his return to the store what had become of the two dollar bill, and if defendant gave any explanation. The evidence on objection was ruled out, and defendant excepted. There was much other evidence not objected to.
If the State had brought out that the defendant was accused of the crime, it would have been competent for the defendant to have rebutted the implied admission of guilt which might have been argued (795) from his silence by giving his reply. S. v. Patterson, 63 N.C. 520; S. v. Worthington, 64 N.C. 594. But it was certainly nit competent for the defendant to give in evidence the fact that he was so charged, for the purpose of giving his unsworn declarations when they were no part of the res gestae. S. v. Scott, 8 N.C. 24; S. v. Hildreth, 31 N.C. 440; S. v. Brandon, 53 N.C. 463; S. v. McNair, 93 N.C. 628. He could not thus make testimony for himself. Had the defendant testified that the charge was untrue, he could have shown as corroborative evidence, either by himself or by this witness, that he made a similar statement when first charged. S. v. Whitfield, 92 N.C. 831. But this evidence is neither asked to rebut an implied admission from his silence nor as corroborative evidence. The objection is further to be sustained on the ground that it is not stated what the defendant expected to show by the inquiry, and it does not therefore appear that he was injured by his exclusion. Knight v. Killebrew, 86 N.C. 400, and cases there cited. The other exception was abandoned on the argument.
PER CURIAM. No error.
Cited: Burnett v. R. R., 120 N.C. 518; Stout v. Turnpike, 157 N.C. 368; S. v. Lane, 166 N.C. 337; S. v. Neville, 175 N.C. 735.