38 S.E.2d 514 | N.C. | 1946
Criminal prosecution upon several indictments charging the defendant, among cognate crimes, with the larceny of an automobile of the value of $1,500, the property of one Hattie C. Burner.
It is in evidence that on 19 June, 1945, Hattie C. Burner purchased a Buick sedan from Hill Phelps Motor Company of Winston-Salem. She secured part of the purchase money from State Finance Company with the defendant, Waddell McNair, as surety. Title to the car was taken in her name, and the defendant was allowed to drive it at times with the understanding that he would not take it out of town. The defendant borrowed the car on 3 August, 1945, and failed to return it. Investigation disclosed that he had driven it to Washington, D.C. He refused to bring it back or to surrender its possession.
On 25 August, 1945, the defendant instituted suit in the Superior Court of Forsyth County to obtain possession of the car from Hattie C. Burner, alleging that he bought the car "from Clyde Myers, an automobile dealer in the City of Winston-Salem," paid for it with his own *463 funds and allowed title to be taken in the name of the prosecuting witness only for financing purposes.
The evidence is in sharp conflict as to who paid for the car and whose his money was used in its purchase. The signatures of "Waddell X mark McNair" and "Hattie C. Burner" both appear on the conditional sales contract and the note of the State Finance Company as purchasers and principals respectively.
When the defendant was on the witness stand, the solicitor, over objection, was allowed to cross-examine him about his complaint in the civil action brought against Hattie C. Burner to obtain possession of the car. This is brought forward and assigned as error.
Verdict: Guilty of larceny.
Judgment: Imprisonment in the State's Prison for not less than 18 months nor more than 3 years.
The defendant appeals, assigning errors. The case as made readily survives the demurrer to the evidence. Whether the defendant acted under a bona fide belief that the car belonged to him was for the jury. The testimony of the prosecuting witness pointed in one direction; that of the defendant in another.
The only exceptions which seem to merit attention are those addressed to the cross-examination of the defendant concerning the gravamen of his complaint in the civil action brought by him against Hattie C. Burner to obtain possession of the car, and perhaps one in respect of the charge.
It is provided by G.S.,
The solicitor announced that the object of the cross-examination relative to the complaint in the civil action, was "to impeach the witness or to contradict him," and not to prove any of the facts alleged therein, as they were at variance with the theory of the State's case. The purpose of the solicitor was to use the allegations of the complaint in the *464 civil action, not "as proof of a fact admitted or alleged in it," but to show that the defendant had made two contradictory statements about the matter, neither of which was correct. To offer an allegation in a pleading simply as evidence of its existence, or that it was made, is not necessarily to use the pleading as proof of any fact therein alleged. The motive of the solicitor was quite the opposite in the instant case. He was seeking to discredit the testimony of the defendant given on the trial by showing that the defendant had made a different statement about the same matter on a prior occasion. The solicitor contended, however, that the defendant's prior statement, as well as his testimony on the trial, was inaccurate. Thus it appears that no impingement upon the statute was intended or resulted from the cross-examination.
The defendant also assigns as error a lapsus linguae of the court in misstating to the jury that the defendant declined to tell where the car was until he was ordered into custody by Judge Nettles at the December Term, Forsyth Superior Court; whereas the record discloses that on the preliminary hearing in the municipal court the defendant informed counsel for the prosecution the car was at 414 Street, Washington, D.C. It does not appear that this misstatement of the evidence was called to the attention of the court before the jury retired, or at any time during the trial. It is required under the rules of practice that this be done in order to give the court an opportunity to correct the inadvertence. Ward v.R. R.,
An error in stating the contentions of a party, or in recapitulating the evidence, should be called to the court's attention in time to afford an opportunity of correction, otherwise it may be regarded as waived or as a harmless inadvertence. Vance v. Guy,
The case is not like S. v. Isaac,
On the record, as presented, the validity of the trial will be upheld.
No error.