Opinion
June Term, 1876.
Impeaching Witness — Practice.
Before a witness can be examined to impeach another witness by proving inconsistent statements made by such witness, the impeached witness must be asked as to such statements, in order that he may have an opportunity to explain them.
ASSAULT with intent to commit rape, tried at Spring Term, 1876, of CHOWAN, before Eure, J., and a jury.
The material question arising on the trial in the Superior Court, and the only point decided in this Court was as to the exclusion of certain evidence.
The defendant introduced one Robinson, an acting justice of the peace in said county at the time of the offense was alleged to have been committed, and proved that the prosecutrix, Penny Taylor, made application to him for a warrant against the defendant, for the crime for the commission of which he is indicted.
The counsel for the defendant asked this witness: "Did the prosecutrix, at the time she made application to you for the warrant, make various and contradictory statements?"
The solicitor for the State objected to this question, on the ground that it was leading; and that the witness should be asked to state the contradictory or repugnant statements, or the substance of them wherein they were repugnant. The witness stated that he could not recollect a single statement that she made, but that she made many contradictory statements about the matter; and that he (the witness) told her she was telling a pack of lies, and refused to issue a warrant.
The objection to the question and answer was sustained by the court, and the evidence ruled out.
The jury returned a verdict of guilty. Judgment thereupon, (440) and appeal by the defendant.
Attorney-General Hargrove for the State.
A. M. Moore for defendant.
The prosecutrix had been examined as a witness in behalf of the State. It was competent for the defendant to impeach her credit in three ways: First, by disproving the facts stated by her, by the testimony of other witnesses. Second, by evidence of her general character affecting her credit. Third, by proof that she had made statements out of the court contrary to what she had testified at the trial. It was for the latter purpose that Robinson was introduced by the defendant. But before he could be examined to impeach another witness by proving inconsistent statements made by her, the impeached witness must be asked as to such statements, in order that she may have an opportunity to explain them. This is the rule adopted in England, the United States courts and in this State. The Queen's case, 2 Brod. Bing., 313; Conrad v. Griffey, 16 How., 38; 1 Greenl. Ev., sec. 460-3; Hooper v. Moore, 48 N.C. 428.
Counsel for the defendant put this question to his witness: "Did the prosecutrix, at the time she made application for the warrant, make various and contradictory statements?
The question was objected to by the solicitor for the State, who suggested that the witness should be asked to repeat the alleged contradictory or repugnant statements or the substance of them. And upon the witness saying "that he could not recollect a single statement that she made, but that she made many contradictory statements about the matter, and that he told her she was telling a pack of lies, and that he refused the warrant," the objection was sustained and the question and answer were ruled out.
There is no error in this ruling of his Honor.
The impeaching witness could not recollect any statement or (441) the substance of any made by the prosecutrix. If her statements had been inconsistent with her evidence, whether they were material to the issue, on which ground only could they be held to be admissible, could not be seen by the court. The witness failing to recollect or specify any previous statement of the prosecutrix, inconsistent or otherwise, his general inference that her statements were contradictory and false were not competent evidence. Such conclusions could be drawn only by the jury from specified statements, admitted or proved to have been made by her, which were material to the issue, and were inconsistent with her evidence on the trial. Such inconsistent statements, had they been in evidence before the jury, would have been competent to affect her credit for veracity. There is
PER CURIAM. No error.
Cited: S. v. Williams, 81 N.C. 602; S. v. Brabham, 108 N.C. 796; Johnson v. R. R., 140 N.C. 588; S. v. Hooper, 151 N.C. 647.
(442)