27 N.C. App. 531 | N.C. Ct. App. | 1975
Joe Medley, the only witness to testify for the defendants, was asked about prior convictions; he answered that he had been convicted of armed robbery in Union County and that the case was now on appeal in the State’s Supreme Court. He was then asked, “Who was convicted along with you?” The trial
In the charge to the jury the trial court instructed as follows:
“Upon cross examination it was brought out that the defendant Medley testified that he had been previously tried and convicted with defendant McCurdy. That was objected to at the time the State asked the question of Medley and the Court did not sustain the objection, but at this time I do sustain the objection and request and direct you that you are not to consider any testimony that McCurdy may have been convicted of any other crime. He and Foster did not go upon the stand, as they both had a right not to do, and the fact that they did not should not be considered against them and they are not being tried for any other crime, and if there is some testimony he may have been convicted of another crime, you should disregard it and not let it influence you in this case. He is being tried only on the alleged robbery of T. W. Hollingsworth.”
Medley’s testimony of the defendant McCurdy’s prior conviction was erroneously admitted. 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, independent, or separate offense. This general rule and its exceptions are treated fully by Justice Ervin in State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). The trial court attempted to negate the error by giving the foregoing cautionary instructions to the jury. In some cases the cautionary admonitions of the trial judge are ineffective to erase from the minds of a jury the effects of prejudicial testimony. Bruton v. U. S., 391 U.S. 123, 20 L.Ed. 2d 476, 88 S.Ct. 1620 (1968) ; State v. Bronson, 10 N.C. App. 638, 179 S.E. 2d 823 (1971).
Sub judice, Medley was the only witness for defendants. He and both defendants were charged with the same offense of armed robbery. He was required to testify that he and defendant McCurdy had been previously convicted of armed robbery. Under these circumstances the cautionary admonitions did not effectively erase the prejudicial effect of the evidence. And though the inadmissible evidence related only to defendant McCurdy’s prior conviction, it was also prejudicial to defendant Foster since they were being tried together as codefendants.
“ ... It goes only to the credibility of the witness, that is, it goes to his character, that is, that a person convicted of a crime is less apt to tell the truth than a man of good character who has not been convicted of such crime, but it does not go to the substance of this case, only goes to whether or not you believe or disbelieve the witness Medley.”
There is no “presumption” or rule of law to the effect that a person of good character is less likely to tell an untruth than one whose character is bad, or one who has been convicted of a crime. 1 Stansbury, N. C. Evidence 2d, (Brandis rev. 1973), § 102. The court’s instructions relative to the evidence of Medley’s prior conviction should have limited jury consideration, if they believed the evidence, to its bearing on credibility, its weight and influence .being solely for the jury to determine.
Since we must order new trials for both defendants for the errors as indicated, we do not consider now the other assignments of error.
New trials.
