State v. Fowler
53 S.E.2d 853
N.C.
1949
Check Treatment
Stacy, C. J.

The question for decision is whether the defendant’s statement to the sheriff that he had killed a man in South Carolina and was an escaped convict from that State was properly admitted in evidence against him on the present prosecution. The answer is to be evolved from the record.

*473 We start with, the general rule that evidence of one offense is inadmissible to prove another and independent crime, the two being wholly disconnected and in no way related to each other. S. v. Choate, 228 N.C. 491, 46 S.E. 2d 476; S. v. Harris, 223 N.C. 697, 28 S.E. 2d 232; S. v. Smith, 204 N.C. 638, 169 S.E. 230; S. v. Deadmon, 195 N.C. 705, 143 S.E. 514; S. v. Dail, 191 N.C. 231, 131 S.E. 573; S. v. Miller, 189 N.C. 695, 128 S.E. 1; S. v. Graham, 121 N.C. 623, 28 S.E. 537. The reason for the rule is to preserve to the accused, unencumbered by suggestion of other crimes, the common-law presumption of innocence which attaches upon his plea of “not guilty,” and to protect him from the disadvantage of extraneous and surprise charges; also to confine the investigation to the offense charged. S. v. Lyle, 125 S.C. 406, 118 S.E. 803.

To this general rule, however, there is the exception as well established as the rule itself, that proof of the commission of other like offenses is competent to show the quo animo, intent, design, guilty knowledge or scienter, or to make out the res gestee, or to exhibit a chain of circumstances in respect of the matter on trial, when such crimes are so connected with the offense charged as to throw light upon one or more of these questions. S. v. Stancill, 178 N.C. 683, 100 S.E. 241; S. v. Beam, 184 N.C. 730, 115 S.E. 176; S. v. Choate, supra; S. v. Morris, 84 N.C. 757; S. v. Edwards, 224 N.C. 527, 31 S.E. 2d 516; S. v. Payne, 213 N.C. 719, 197 S.E. 573; S. v. Ferrell, 205 N.C. 640, 172 S.E. 186; S. v. Simons, 178 N.C. 679, 100 S.E. 239; S. v. Kent, 5 N.D. 516, 69 N.W. 1052; Wigmore on Evidence (3rd), Yol. 2, Sec. 390; Note to People v. Molineux, 168 N.Y. 264, 61 N.E. 286, as reported in 62 L.R.A. 193-357 (q.v.).

It is important to bear in mind the principle upon which the exception rests, for unless the proffered evidence of other offenses legitimately fall within its scope, it should be excluded. S. v. Adams, 138 N.C. 688, 50 S.E. 765. And it may be that the line of demarcation which separates the rule from the exception'has been blurred or rendered difficult of discernment by reason of its seemingly inconsistent application in some of the cases. S. v. Edwards, 224 N.C. 527, 31 S.E. 2d 516; S. v. Biggs, 224 N.C. 722, 32 S.E. 2d 352; S. v. Kelly, 216 N.C. 627, 6 S.E. 2d 533; S. v. Flowers, 211 N.C. 721, 192 S.E. 110. If so, we must try again to plot its course. The statement of the difference is simple enough. Its application is the place of the pinch or the rub. The exception requires a more relevant base than the mere disposition of the accused to commit such crimes. S. v. Beam, supra. The touchstone is logical relevancy as distinguished from certain distraction. “Never run rabbits while pursuing the fox,” is a rule of the sportsman, equally worthy of observance in the trial of causes as on the hunt. Good sportsmanship is after the manner of good morals as well as good law.

*474 It is likewise to be borne in mind that the defendant offered no evidence in the case, and did not put his general reputation and character in issue. S. v. Nance, 195 N.C. 47, 141 S.E. 468; S. v. Colson, 193 N.C. 236, 136 S.E. 730.

In support of the ruling below, it is pointed out that the defendant confessed to both offenses at the same time, i.e., he told the sheriff that he killed Mamie J. Wilkerson and in the same conversation he stated that he was an escaped convict from South Carolina. It is contended, therefore, that the whole of the confession was admissible. S. v. Edwards, 211 N.C. 555, 191 S.E. 1; S. v. Swink, 19 N.C. 9; Anno. 26 A.L.R. 542; 2 A.L.R. 1030. The general rule is that a confession, like a deposition, Savings Club v. Bank, 178 N.C. 403, 100 S.E. 607, should be offered in its entirety. S. v. Patterson, 63 N.C. 520. Whether any part of it should be excluded, or admitted under special instructions according to its relevancy, is a matter about which the courts are divided. Anno. 2 A.L.R. 1029; 22 C.J.S. 1439.

In reply to the-State’s position, the defendant says the record fails to make manifest the unity of the confession, or that the two statements were made or elicited in the same conversation. Moreover, the right of the confessor to have his confession considered as given, in its entirety, with whatever views or theories it affords, S. v. Jones, 79 N.C. 630, may not extend to the prosecution, for if the part pertaining to the crime charged can be separated from the part relating to other offenses, only the part material to the inquiry should be received in evidence under the rule. People v. Loomis, 178 N.Y. 400, 70 N.E. 919; People v. Spencer, 264 Ill. 124, 106 N.E. 219; 20 Am. Jur. 426; 22 C.J.S. 1440. On this point it would seem that the defendant’s position is the sounder one. People v. Rogers, 192 N.Y. 331, 85 N.E. 135; 15 Ann. Cas. 177. At least, such accords with many of the well-considered cases. Anno. 2 A.L.R. 1029. Then, too, it should be observed that the evidence in respect of the defendant’s past criminal record was stated by the sheriff, not in giving the defendant’s confession in chief, nor as an integral part thereof, but in response to a direct and independent question by the solicitor. People v. Loomis, supra.

By and large, however, the chief reliance of the prosecution is that the proffered testimony comes within the exception to the general rule of exclusion. 22 C.J.S. 1272. It was inferred in its admission, under authority of S. v. Swink, supra, that the defendant wished to get rid of the deceased for fear she would disclose his past criminal record to the sheriff, thus affording a motive for the crime charged. S. v. Morris, 84 N.C. 757. Indeed, the court instructed the jury that “this evidence is for your consideration only as it may bear — it being for you to determine to what extent, if any, it does bear — upon the question of the motive or *475 intent of the defendant in relation of the alleged killing of Mamie J. "Wilkerson.”

The difficulty with this inference and its submission to the jury is that it rests only in surmise, and the competency of evidence is for the court, not the jury. S. v. Whitener, 191 N.C. 659, 132 S.E. 603; S. v. Dick, 60 N.C. 440. At any rate, the record is barren of any evidence to connect the offense charged with the defendant’s past criminal record. Whether the requisite degree of relevancy exists is a judicial question to be determined in light of the inevitable tendency of such evidence to raise a legally spurious presumption of guilt in the minds of the jurors. S. v. Lule, supra. It nowhere appears of record that the deceased knew anything about the defendant’s past, or that such was in her mind when she threatened to call the sheriff. The defendant went to the kitchen and got the axe before the deceased made any threat to “get the law.” The direct testimony of the little girl, Annie Ruth, was somewhat equivocal on this point, but on cross-examination she was perfectly clear about it. The more reasonable interpretation of the record would seem to be that the two had been quarreling or fighting, according to the testimony of Ed McKeithan, and that this was back of the deceased’s threat “to call the law,” as one of the witnesses expressed it. The evidence apparently comes squarely within the general rule of exclusion. S. v. McCall, 131 N.C. 798, 42 S.E. 894.

We do not have the question, posed in some of the cases, where the confession of the crime charged' is so interwoven with the challenged statement that the two cannot be separated without twisting or distorting the pertinent part. Nor is it essential to consider this question or the authorities bearing thereon. Quite clearly if the challenged statement stood alone, its ineompetency would be conceded. It is specious logic to reason from one crime to another, e.g., the defendant committed a similar offense in days agone, ergo he committed this one. Obviously a non sequitur, and the cases so hold. S. v. Shuford, 69 N.C. 486. Locus penitential and reformation are also known to the law. Evidence of other crimes, when offered in chief, violates both the rule which forbids the State initially to attack the character of the accused and the rule that bad character may not be proved by particular acts. S. v. Choate, supra; Wharton’s Grim. Evi., Sec. 344. It is to be remembered that the defendant in the instant case did not go upon the witness stand or put his character in issue. S. v. Nance, 195 N.C. 47, 141 S.E. 468; S. v. Colson, 193 N.C. 236, 136 S.E. 730.

The case of S. v. Kelly, 216 N.C. 627, 6 S.E. 2d 533, is cited as an authoritative decision in support of the admission of the challenged testimony. We think there are distinguishing differences between the two cases, but if not altogether so in their implications, to the extent that our *476 present decision clashes with the Kelly de&ision it must be understood as modified accordingly.

The prejudicial effect of the challenged testimony, if incompetent and erroneously admitted, is not debated or questioned. It undoubtedly forestalled due consideration of any “less degree” of the capital charge. G.S. 15-170.

The learned counsel appointed by the court to represent the prisoner has brought up his appeal to the end that the accused may not suffer death except as the law commands. Both Mr. Sabiston and Assistant Attorney-General Moody have argued the case with their accustomed zeal and earnestness, fortified by manifest research and exhaustive briefs. Nothing has been overlooked on either side.

A death sentence presupposes a trial free from error. The defendant is entitled to another hearing. So ordered.

N ew trial.