State v. RowellState v. Rowell
- Reporters:
- , ,
- Before:
- Winborne
The assignment of error most stressed by appellant on this appeal is based upon Exception No. 1 to the exclusion of the evidence as above set forth. In this connection, “Cross-examination of an opposing witness for the purpose of showing his bias or interest is a substantial legal right, which the trial judge can neither abrogatе nor abridge to the prejudice of the crоss-examining party.” So declared this Court, in opinion by Ervin, J., in S. v. Hart, 239 N.C. 709, 80 S.E. 2d 901.
It is also stated in the Hart case that “A party to an action or proceeding, either civil or criminal, may elicit from an opposing witness on cross-examination pаrticular facts having a. logical tendency to show that the witness is biased against him or his cause, оr that the witness is interested adversely to him in the outсome of the litigation,” citing cases, and that “undеr this rule, a witness for the prosecution in a criminаl case may be compelled to disclоse on cross-examination that he has brought, or is preparing to bring a civil action for damаges against the accused based on the аcts involved in the criminal case,” citing cases.
The Attorney-General for the State admits that if the Hart case cannot be distinguished on the facts, the above exception and the ruling thereon is error. But thе Attorney-General here contends that the factual situation in the Hart case is distinguishable from that in the presеnt ease. Nevertheless, it is said that “The State admits that: (1) If the estate of W. E. Ivey, Jr., actually goes on trial against the truck driver, Wiley Goins, and (2) if the defendаnt testifies in the civil action, and (3) if he testifies for the plaintiffs in the civil action, then it is possible that the conviction of the defendant would have some effect upon his credibility as a witness sincе former conviction can be made the basis of impeachment.”
*282 Moreover, it seems that the probability of bias from -interest if the witness were suing for recovery of damages in sum of $25,000, on the оne hand, and if he were being sued for like amount on the other hand, both arising out of the occurrence for which defendant is charged with crime, рresents a difference without a distinction in principle.
And paraphrasing the Hart case, the jurors might well have discounted the testimony of the witness Goins in a material manner had they been informed that he was pecuniarly interested in the conviction of the defendаnt. This being true, the exclusion of the facts relating to the civil action brought against Goins constitutes prejudicial error, for which there must be á
New trial.
Johnson, J., took no part in the consideration or decision of this case.