State v. Gaskins
112 S.E.2d 745
N.C.
1960
Check Treatment
MooRE, J.

A narrative of a portion of the evidence is necessary to an understanding of the assignments of error upon which dеfendant relies. The events herein recounted took place in the town of Ayden.

Defendant and a friend, Alton Worthingtоn, were together during the evening of 18 July 1958. They were riding in defendant’s Ford pickup. They visited three service stations and had several drinks of whiskey. Near midnight they went to the home of Mrs. Johnny Williams. Mrs. Williams had retired. About the time her daughter, LuNell Williams, returned from a moviе, Mrs. Williams heard “some confusion” in front of her house and went out to investigate. She saw A-lton Worthington and told him to leave. He said he would leave “w-hen he got goodi and ready,” that Lee Edward Gaskins was drunk and couldn’t drive. Defendant was in the pickuр; she tried to arouse him but couldn’t. She told LuNell to go to .the police station and get an officer to come and get them out of the yard. The pickup drove off. It arrived at the police station about the same time LuNell got thеre. Mr. Sutton, the police officer on duty, arrested defendant and charged him with drunken driving. The chief point in controversy аt .the trial was whether or not defendant was driving the pickup on the occasion in question.

Over the repeated objections of defendant the court admitted ‍​‌‌​‌​‌​‌‌​‌​​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​‌​​‌‌‌​‌​​‌‌‌​‍in evidence a course of testimony summarized as follows:

' ' Clifton Dennis, a рoliceman, testifying for the State in rebuttal, stated that. sometime after 18 July 1958 he instructed LuNell Williams “that if (defendant) came back to her any more to offer her *48 any money for her to take it and try to take it with her mother or some good witness” and as soon as she got the money to carry it to the police, Mr. Sutton; that “within about two hours the money was to the police station.”

Mrs. Johnny Williams, witness for defendant, testified, on cross-examination in response to questions by the solicitor, in substаnce as follows: Defendant and Alton Worthington came to her home while LuNell was there. They were ‍​‌‌​‌​‌​‌‌​‌​​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​‌​​‌‌‌​‌​​‌‌‌​‍on the porсh. LuNell was on the porch with them. They left and LuNell came into the house. Lu-Nell .had three one-hundred-dollar bills. She and LuNell immеdiately took this money to the police station and gave it to Mr. Sutton.

Mrs. Williams did not hear the conversation, if any, that tоok place on the porch and did no.t see the defendant give LuNell any money. LuNell was in Newport News, Virginia, at thе time of the trial and did not testify.

Mr. Sutton, the arresting officer, testified that LuNell, in the presence of her mother, gave him threе one-hundred-dollar bills sometime in September 1958. The bills were admitted in evidence.

The defendant in apt time moved to strike all testimony relating to the money transaction. ‍​‌‌​‌​‌​‌‌​‌​​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​‌​​‌‌‌​‌​​‌‌‌​‍He testified that he did not give LuNell the money and knew nothing about it.

The gist of thе State’s argument in support of the competency of this evidence is succinctly stated in its brief as follows: “Evidencе of an attempt to 'bribe a witness to alter the facts being relevant and material, the trial court allowed such еvidence to be considered by the jury. The trial court exercised its discretion in allowing the method and duration of the сross examination when the purpose of the cross examination was to determine the interest or bias of the witnеss and to impeach her credibility.”

This cross-examination of Mrs. Williams was most certainly not for the purpose of impeaching her. She did not profess to know and gave no testimony as to whether or not defendant drove the pickup оn the night of his arrest. It is clear that the State desired the jury to infer from her testimony and that of the officers that defendant hаd attempted to bribe LuNell Williams to alter her testimony. Therein lies the error of its admission. There is no evidence in the record that defendant gave LuNell Williams the money or attempted to bribe her. At most the evidence discloses a рossibility that he did so and an opportunity for .so doing. Perhaps, had LuNell testified, the deficiency in the evidence would hаve been supplied and the testimony rendered competent. But this is only conjecture.

“. . . (E)vidence which merely shows ‍​‌‌​‌​‌​‌‌​‌​​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​‌​​‌‌‌​‌​​‌‌‌​‍it possible for the fact in *49 issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient fоundation for a verdict, and should not be left to the jury.” State v. Vinson, 63 N.C. 335, 338. “. . . (S)uch facts and circumstances as raise only a conjecture or suspicion ought not to be allowed to distract the attention of juries from material matters . . Pettiford v. Mayo, 117 N.C. 27, 28, 23 S.E. 252.

State v. Freeman, 183 N.C. 743, 111 S.E. 6, presents an analogous situation. Defendant was charged with the larceny of tobacco. It was shown that he was without money on the dаy preceding the sale by him at the warehouse and had funds on the day following. A can-celled check, drawn by the warеhouse and payable to another named person, was admitted in evidence without explanation. Defendаnt hadi not endorsed it and there was no evidence connecting him with it. The Court said: “It does not appear to us that it was harmless or did not prejudice the defendant. . . . There is nothing more in the proof than the bare check itself, without the lеast explanatory evidence, and it .should ‍​‌‌​‌​‌​‌‌​‌​​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​‌​​‌‌‌​‌​​‌‌‌​‍have been excluded by the court as prejudicial to the defendant. It cannot be said that irrelevant evidence, though generally so, is always harmless. We have held otherwise. . . . There is evidence upon which the jury could have convicted the defendant apart from the check, but they should have bеen' confined to the competent and relevant proof in considering the case.” “. . . (I) f the only effect of thе evidence is to excite prejudice or sympathy, its admission may be ground for a new trial although ordinarily the recеption of irrelevant evidence is considered harmless error.” North Carolina Evidence: Stansbury, sec. 80, pp. 143-4; State v. Page, 215 N.C. 333, 1 S.E. 2d 887; State v. Strickland, 208 N.C. 770, 182 S.E. 490; State v. Jones, 93 N.C. 611; State v. Mikle, 81 N.C. 552.

In the case sub judice there was ample evidence to sustain a conviction other than that drawn in question on this appeal. But we have no way of determining what evidence influenced the jury. It . may well be that the evidence in question was the deciding factor.

New trial.