State v. . RiceState v. . Rice
- Reporters:
- , ,
- Before:
- Stacy
Thе appeal may be made to turn on whether in a homicide case, where there is plea and evidence of self-defense, it is competent for the defendant’s wife to testify to a threat made by the deceased against her husband which she communicated to the defendant before the killing.
It is conceded that the question should be answered in the affirmative. C. S., 1802; S. v. Baldwin, 155 N. C., 496, 71 S. E., 212. There .was error in excluding the proffered testimony of the defendаnt’s wife. S. v. Jones, 89 N. C., 559. See S. v. Cotton, 218 N. C., 577, 12 S. E. (2d), 246.
It is the position of the State, however, that on the prеsent record, no harm has come to the defendant beсause he was later permitted to testify to the threat as сommunicated to him by his wife. Even so, the defendant was denied the benefit of his wife’s testimony and its credibility. *636 S. v. Dickey, 206 N. C., 417, 174 S. E., 316. The jury might have acceptеd what sbe would have said, while inclined to discredit the defendant’s version of what she told him, especially as the defendant’s statеment was unsupported by the wife’s evidence given on the trial. Eaves v. Coxe, 203 N. C., 173, 165 S. E., 345; Burns v. R. R., 125 N. C., 304, 34 S. E., 495.
The evidence admitted is not the same as that excluded, nor by the same witness. Hence, the rule against granting new trials where Competent evidence is excluded and later given by the same witness, Baynes v. Harris, 160 N. C., 307, 76 S. E., 230, appears to be inapplicable to. the faсts of the instant record. More appropriate would seem to be the pronouncement of Brogden, J., in the’ Eaves case, supra: “Obviously if a party offеrs the competent testimony of a given number of witnesses, but the court excludes the testimony of one, even though the testimony оf the others is admitted without objection, notwithstanding the offering pаrty is entitled to the credibility and weight of testimony of the excluded witnеss. Otherwise the total weight and credibility of the testimony would be reduced for the reason that a jury might have believed the testimony оf witness whose evidence was excluded and for one reаson or another might not believe the testimony of the witnesses whоse testimony was received without objection.”
The State further insists that when the jury returned, the witness was. asked “what threats, if any, she had ever heard the deceased make against her husband”; that the court permitted this question, instructing the witness to confine herself exclusively to statements made by the deceased, if any, and that the witness failed to repeat her testimony given in the absenсe of the jury. In answer to this position, it is enough to say the witness understood, as did her counsel, that what the deceased had said оn the morning of 2 July, had been excluded as incompetent. Hence, in answer to the question, the witness proceeded to tеll only what she heard on the day of the homicide and omitted аny reference to what was said two days earlier. As a result, thе defendant was deprived of the weight and credibility of his wife’s testimоny in respect of the alleged communicated threat made on Thursday. 3 Am. Jur., 590.
There are other exceptions appearing on the record worthy of consideration, but as they аre not likely to arise on the further hearing, it is deemed supererogatory to consider them now.
For the error as indicated in excluding the wife’s proffered testimony, a new trial must be had. It is so ordered.
New trial.