State v. . Jeffries
23 S.E. 163
N.C.
1895
Check Treatment
Montgomery, J. :

Thе defendant owed J. A. Smith $15 by note and in July, 1891, executed to him a chattel mortgage upon a bicycle, a horse and a wagon. On the first day of October of the same year, he pledged the bicyсle to one Morris, in Greensboro, to secure the repayment of $8 which he had borrowed from him at that time. In March, 1895 (five months after he had pledged the bicycle) the defendant offered to sell the wagon to one Hodgin. The defendant was indicted under Section 1089 of The Code for disposing of the biсycle with ‍‌​‌​​‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌‌‌​‌‌‌​​‌​‌​‌​​​​‌​​‌​​​​‍intent to hinder, delay and *728 defeat tbe rights of tbe mortgagee, Smith, and on tbe trial tbe State wаs allowed, after objection made and overruled, to introduce testimony concerning the defendant’s offer to sell tbe wagon, for tbe purpose of proving his unlawful and corrupt intent in рledging tbe bicycle.

Tbe court committed error in permitting tbe introduction of this testimony for that purpose. There are some few exceptions to the 'almost universal ‍‌​‌​​‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌‌‌​‌‌‌​​‌​‌​‌​​​​‌​​‌​​​​‍rule of law that evidence of a distinct substantive offence cannot be admitted in support of another offеnce. One of these exceptions is, when the quo animo enters into and forms a necessary part оf the imputed offence and proof of a corrupt and unlawful intention is indispensable to establish the guilt of the person charged, testimony of another offence committed by that pеrson, provided it tends to establish such intent, is admissible. When these exceptions are brought into prаctical operation in criminal trials, however intelligently they may be administered, they are liable to be attended with great injustice to the defendant. It is very difficult for juries to understand clearly thе precise purpose for which such testimony is allowed, and more difficult still for them not to be influenced in making up their verdict by the general impression of the testimony, rather than by the particulаr effect intended for it to have. On this account, in many of the States there are respeсtable authorities which do not recognize these exceptions.

This Court has, however, deсided that such testimony is admissible; but we are not in ‍‌​‌​​‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌‌‌​‌‌‌​​‌​‌​‌​​​​‌​​‌​​​​‍the least disposed to extend the practicе beyond that settled in the decisions. In State v. Murphy, 84 N. C., 742, a witness for the State, after objection made and ovеrruled, testified that he was with the prosecutor on the premises of the defendant, who was then оn trial and charged with the larceny of a hog, the *729 property of tbe prosecutor, and beard tbe prosecutor identify and claim bis property which tbe defendant had confined on his рremises with one of the witness’; that the defendant refused to deliver the hog to the prosecutоr, for the reason, he said, that some other' person would claim it, it being unmarked. The witness further ‍‌​‌​​‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌‌‌​‌‌‌​​‌​‌​‌​​​​‌​​‌​​​​‍testifiеd that the other hog in the pen was his, and that he then and there claimed it, and demanded its delivery to him. This Court said that there was no error in admitting this testimony, because this “collateral offence” tended to prove the guilty knowledge of the defendant, and the evidence constituted a pаrt of the res gestee. In State v. Thompson, 97 N. C., 496, the State, after objection made and overruled, was permitted to show that, at the same hour and on tbe same night when the outhouse was burned, the dwelling house, some 15 yards off, was alsо attempted to be set fire to by means of fagots of wood tied up with a rope belonging to the defendant, while both buildings had been saturated with kerosene oil. In this Court the ruling of his Honor was sustained оn the ground (1) that¿he testimony tended to identify the person who burned the outhouse, and (2) because it showed that the burning of the outhouse and 'the attempt to burn the dwelling house, both on the same night, were parts of one continuing transaction.

In the case before us, the transaction about which the witness was allowed to testify took place five months after the offence with which the defendant is charged was alleged to have been committed. We think that, after the lapse of sо considerable a time, ‍‌​‌​​‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌‌‌​‌‌‌​​‌​‌​‌​​​​‌​​‌​​​​‍no presumption of the defendant’s unlawful and corrupt intent indisposing of the bicycle can be raised. Such testimony about a transaction so far removed in point of time from the date of the alleged offence for which the defendant is indicted has no *730 tеndency to prove Ms guilt. If such testimony be admissible to prove such intent, the “collateral offence” ought to be proved must be confined to a time before, or just about the time, the offence charged against the defendant is alleged to have been committed.

¥e have considered this case as if the defendant had sold and disposed of the wagon. Such is not the fact. The case shows that the sale was not consummated, and the wagon was afterwards delivered to the mortgagee, who sold it and applied the proceeds as a credit on his debt against the defendant. There is error.

New Trial.