Evidence offered by the State tended to show: On the night of November 20, 1957, police officers of Dunn went to defendant’s home. A seаrch warrant was served on Edna Bell, defendant’s wife. Upon search, they found eight half-gallon jars of nontax-paid whiskey. Ten or twеlve unidentified persons (men and women) were in the house with Edna Bell. The officers did not know any of them or whether any lived there. Dеfendant was not at home when the search was made. The officers arrested Edna Bell. Some ten or fifteen minutes after her arrival at the police station, defendant voluntarily came to the police station and said, “It’s my whiskey” and “it wasn’t hers.”
Defеndant did not testify. The only witness offered by defendant was Edna Bell, his wife.
Edna Bell testified that she “was going to have a party”; that she had bought the whiskey; that her father had given her the $12.00 she used for that purpose; that defendant had no knowledge of what she had done; and that defendant was at work, not at home, when the whiskey was brought in. On cross-examination, she testified that she had pleaded guilty in the Recorder’s Court of Dunn to “having this whiskey,” but later gave notice of appeal. (The record is silent as to the judgment of the Reсorder’s Court in Edna Bell’s case and as to disposition of her case in the superior court.)
The further cross-examination оf Edna Bell includes the following:
“Q. Did you say this was the first whiskey that ever went to your house? A. Yes. Q. Plave you had any there since, nontaxpаid whiskey? (Objection; overruled; Exception No. 1) A. I haven’t had any. Q. You haven’t? A. No. Q. But your husband has, hasn’t he? (Objection; overruled; Exceрtion No. 2) A. That was his. I don’t know how much whiskey they found in my house two weeks ago, because what they found was his. It wasn’t mine.”
While the record does not show the date of trial, the trial term began August 25, 1958. Defendant was on trial for an offense alleged to have been cоmmitted on November 20, 1957.
If the defendant, as testified by his wife, had nontaxpaid whiskey in his possession in August, 1958, he was then guilty of a separate criminal offense, to wit, a violation of G.S. 18-48.
S. v. Cofield,
G.S. 8-57, in pertinent .part, .provides: “The husband or wife of the defendant, in all criminal actions or proceedings, shall be a com-
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pebeuit witness for the defendant, . . . Every such person examined as a witness shall -be subject to be cross-examined as are other witnesses.” When Edna Bell was examined as a witness for defendant, she was subject to bе cross-examined to the same extent as if unrelated to him.
S. v. Tola,
If based on information and asked in good faith, (compare
S. v. Phillips,
Assignment of error based on Exception No. 2 presents a different question. Criminal conduct of defendant in August, 1958, some nine months after the alleged criminal offense for which defendant was being tried, had no relation to the credibility of Edna Bell. The probative fоrce of this testimony was to show that defendant in August, 1958, had committed an unrelated, separate and distinct, criminal offense.
Edna Bеll did not testify to defendant’s good character. When a defendant avails himself of his right to offer evidence of his good chаracter, “the State can introduce evidence of bad character, but cannot, by cross-examination or otherwise, offer evidence as to particular acts of misconduct.”
S. v. Holly,
“The general rule is that in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, indepеndent, or separate offense.”
S. v. McClain,
This criminal prosecution is based on a warrant issued November 21, 1957. Certainly,
S. v. Colson,
The crucial issue was whether the nontaxpaid whiskey found on November 20, 1957, was in possession of defendant or in possession of Edna Bell. Thе fact that defendant had nontaxpaid whiskey in his possession in August, 1958, was not relevant to this issue.
Even so, the State contends that testimоny as to what occurred in August, 1958, was admissible to prove
quo animo,
that is, that defendant had possession of nontaxpaid whiskey on Novembеr 20, 1957, /or
the 'purpose of sale.
In support of this contention, the State cites S.
v. Simons,
Here, if defendant had nontaxpaid whiskey in his pоssession in August, 1958, there is no evidence that he either sold it or that his possession was for the purpose of sale. Under G.S.18-11, proof of defendant’s unlawful possession of nontaxpaid whiskey in August, 1958, would constitute prima facie evidence in a separate criminal prosеcution based on the transaction of August, 1958, that his possession was for the purpose of sale; but proof of unlawful possеssion of non-taxpaid liquor in August, 1958, standing alone, while a criminal offense, is not relevant to whether his possession, if any, on Novembеr 20, 1957, was for the purpose of sale.
Our conclusion is that, since the only probative force of the testimony that defendant in August, 1958, unlawfully had nontaxpaid whiskey in his possession, was to show that he then committed a separate criminal offense, its admission, оver defendant’s objection, was erroneous and prejudicial.
It is noted that the basis of decision is that the testimony was inadmissible, independent of the circumstance that it was given by defendant’s wife.
New trial.