*1 State
STATE v. PARKER. (Filed 19, 1903). December OP CORROBORATION WITNESSES—Witnesses—Rule 2'7 —Evidence- Trial—Rape. Instructions — duty
Where corroborative evidence is it is the judge, any request, trial without jury fully instruct as they permitted to the use are to make evidence. INDICTMENT John beard W. E. against by Judge Parker, Allen and a Term, 1903, of May tbe jury, Superior of Dítrham a From verdict of County. guilty judg- ment tbereon tbe defendant appealed. Gilmer,
Robert D. for tbe Attorney-General, State. Fuller,
Jones for tbe defendant. J. Tbe crime of wbieb tbe bas Montgomeet, a little rape less tban ten girl years convicted— most unusual one age and most Tbe revolting. —is evidence is not before us. difficult to imagine in wbieb tbe rules that tbe should be (1) evidence such as to a reasonable doubt of tbe jury beyond satisfy defendant’s none but guilt, (2) competent should be Court, received that evidence com (3) petent restricted be confined special that end and Court to explained tbe clearly tban case. Tbe only exception appears present tbe record one directed tbe failure of bis alleged instruct to certain evidence tbe respect properly in its nature. that was and received offered been examined witness for tbe bad 'prosecutrix State. Solicitor then tbe examination Tbe put 134-14 COURT. THE SUPREME IN v. Parker. *2 D'. C. the peace, taken by justice
of the prosecutrix, “for him, by investigated matter being when the Gunter, The Solicitor the prosecutrix.” of corroborating purpose the of corroborating A. “for the introduced Cobb then W. was a that police he substantially who testified Lilly Lyon,” Feb evening and that on the of tire man city Durham, to was said after about ten crime days 22, 1902, ruary of the mother the prose- committed, have been home came her to him that told cutrix, prosecutrix wait on his home to with him to hired her to home and go her and he with that started sick; who was then wife, woods then violently into the of tire way took her out carried her to his he then that her; her will ravished against woods her with to next took him and on the same day home that If above was all her.” same to tiring no error proceeding, in tire case there be there is to the contrary appearing we must presume, nothing stand had on the witness the prosecutrix record, as to to such degree on her cross-examination assailed been or that wit her credibility, to to an impeach amount attempt for that defendant purpose. introduced nesses had out was made agreed the case But after to counsel applied the prisoner, Solicitor the state for an amendment to who tried so that it might appear of the case on appeal, ment the state the charge to the jury Honor did explain and the evidence of Gunter to in the evidence ment referred only. as corroborative evidence considered of Cbbb certainty with he could Honor stated I-Hs for Mr. was willing but that not, so or he did whether if he amendment, make Solicitor) (acting Foushee was made the statement do so, provided proper thought re the statement made being objection “Upon follows: and to the Gunter ferred v. Pakkee. the Court Cobb, stated presence that the evidence would be admitted as corroborative of the evi dence of the In the prosecutrix.
Court recited the evidence of the sub prosecutrix said 'The State contends stantially: that the to believe jury ought her, and that is corroborated.’ etc., she The State says she made the same statement before to Gunter and to Oobb, and that these statements corroborate her evidence stand. In other words, the State that she made the argues same statement and that before, this should lead the believe what she now *3 to.” are testified We of the opinion the upon amendment made to case on in the the appeal, language Honor, his the required by was not properly instructed the matter of the of Gunter and Cobb. Of course, the evidence was intro duced, and it when was received as corroborative evidence,
it was in the of the presence for it was for their con jury, but did not sideration, demands the law. satisfy the Bond, In v. 113 N. C., the Sprague 551, evidence there intro duced was for the only competent corroboration, and that was conceded when it offered, was for that pur did his Honor admit pose alone it. Court dis there, same which cussing had been decided question in Bullin Marshall, said: “The ger learned Justice who delivered opinion Court that case evi was loth to to this yield as he considered dently innovation, it, as he no doubt that it would be most difficult foreseeing, did, of such restrain effect evidence and from it prevent on the minds of as substantive of the operating proof facts Because there is this dispute. its exer danger an influence on the it is incumbent on cising improper jury, at the trial, such corroborative Judge presiding where is it, see to even without any request instructions, understand special jury fully THE; IN SUPREME COUNT. are
use to make of and we they permitted must hold it, failure caution them this when such a re particular as defendants entitled quest made, here, done them to new trial.” It is true that in the case before us there was taken the trial below his Honor’s to further on matter under dis instruct failure and it was not cussion; called at nor in the motion time he was delivering, on for a new incumbent him to do so Avas, trial. however, we without hands any special counsel, request Bond, it was have seen in the case of and if Sprague supra; on done without incumbent him to have a special request so, to do that fact before end, then appearing and we can error. This a life and death matter, us, corroborative, which was that evidence purely not agree on trial as corroborative evi should have been received without a sufficient ex the jury and then submitted dence, kind of character of that evi nature and planation make a re omitted to special because simply dence, amendment But again, for that purpose. quest that- the evidence apparent allowed and not the witness. matter corroborated was the *4 prosecutrix be cannot be cannot a witness strengthened, of The evidence of the same statement made repetition by corroborated falsehood be as often may times. at different A. others to corroborative evidence this kind truth; as the repeated evidence to but prove facts, substantive force as has which has been cast upon the imputation remove to only attack his cross-examination, an by upon his witness upon Reade, in Justice Associate witnesses. other credibility Parish, said: “It is like C., N. 79 of State affects the witness.” which only of character “The rule is that case: the same further said That Judge that when witness (observe is impeached witness TERM, impeached), competent support witness by prov consistent ing statements at other aas witness is times, just supported but it must by proving not be con character, sidered as substantive the truth of the facts any more than other any evidence. The fact that hearsay sup a ivitness who testifies does porting indirectly support facts to which testifies does not alter case. That incidental. He is not under supported by putting jorop him, but a burden from if has him, been removing any put on him. far How do that consistent statements will proving must It depend upon circumstances the case. may amount much or little.” further very appears amendment that his Honor one word himself evi of corroborative meaning nature dence. He called con argument tention them State, the counsel without instructing as to whether that law and contention argument embraced as it should have The never given. got explana tion corroborative evidence. the contention got only They that contention as we not the State, being, seen, have law. It made no difference thát for the prisoner Solicitor for the State the evidence Cbbb argued Gunter His ex evidence. having what plained such evidence had be meant, choose tween the and soundness of the con strength arguments tentions counsel. respective They should under law guidance of his Honor.
New trial.
Glabk, C. J., convicted of dissenting. a most but this Court revolting felt crime, compelled grant a new trial con technical that could hardly Parker, ceived to have affected the verdict. State *5 convicted, asks again Again COURT. IN THE SUPREME in that the Judge technical ground new trial upon purely certain evidence not tell them that to the charge jury substantive testimony, and not as was offered as corroborative was testimony so stated when the Solicitor though of the in the presence jury stated Judge offered, testi- and not substantive he admitted it that the State told them in his to the charge jury mony, testimony of the on evidence as corroborative such relied in favor of cor- the prosecutrix. Every presumption should courts and appellate of the below, rectness proceedings trial. should reasons for new astute find not be the al- was appear appellant prejudiced plainly in all reasonable and that but such error error, leged not have There conviction would occurred. probability recent true, origin been decisions, Judge out should the corroborative single his charge it is corroborative and tell testimony do so should substantive, but failure to held certainly reversible error unless tire was called Court- it as in this instruct, especially case, prayer when, stated, and Solicitor both when the evidence the Judge merely it corroborative, stated that the State relied charge prosecutrix. corroborative of the evidence virtue of an 27 this Court amendment Hule will hence- By it error fail to repeat forward not reversible hold corroborative when it is so that the evidence merely to so unless stated on specifically prayed its admission, not a vested heretofore held is right, rule charge. of all other absence to observe it not, this authorize us to set aside second time exception, trial court. the solemn verdict judgment time or at the kind was taken of this Besides, Finally the Judge. case as first settled by appeared *6 N. ANGUS® 1903. 215 G.]
State PaRkee. v. of counsel for yielding importunity tbe prisoner, admitted an Judge after amendment, a saying, lapse “I cannot with whether months, I did so or certainty e., i. not,” that the evidence was to charge be considered as corroborative As only. he could recollect, certainly could not authorize an amendment that he did not so charge. If it was error, and even to fail prejudical error, charge the corroborative evidence more failure explicitly, should have positively affirmatively appeared, to recollect, after a Judge merely great lapse I time, “whether did so not be not,” should (charge) taken as that he did not. A tidal is proof too solemn and ex- a a matter to have con- pensive conviction, second especially set aside because the could not recollect viction, Judge affected, whether certain which would not phrase, have verdict all human probability, positively certainly used him. Powell,
In N. it was while held C., that, should instruct the should not be considered other it af any unless light, yet that this was not it will firmatively appeared done, be pre sumed that it was. was reiterated and This re-affirmed. Hudson, Brabham, 796; State v. 108 N. Byrd C., Here no for failure so exception charge made till after the ease on had settled. appeal have been called to the attention the Court prayer if an Even for failure to so charge.
been set out case on the recollection prisoner’s appeal, But if mere fact been fresh. cannot recollect that after the months he positively lapse “whether or not” should be allowed here he did chargv ver case, trial, this as valid new few after, will stand. It is too much to dicts, cases, in State especially memories. trial such details their expect Judges carry