STATE
v.
TILLEY et al.

No. 722.

Supreme Court of North Carolina.

January 15, 1954.

*475 Atty. Gen. Harry McMullan, Asst. Attys. Gen. Ralph Moody and Love, and Robert L. Emanuel, Raleigh, Member of the Attorney-General's Staff, for the State, appellee.

Higgins & McMichael and H. Bryce Parker, Winston-Salem, for defendant D. W. Snow, appellant.

ERVIN, Justice.

The defendant insists primarily that he is entitled to a reversal for insufficiency of testimony. This claim is insupportable. The evidence of the State's witness Tilley *476 was amply sufficient to carry the case to the jury on both counts of the indictment. State v. Bennett, 237 N.C. 749, 76 S.E.2d 42.

This is true notwithstanding Tilley claimed to be an accomplice of the defendant, and notwithstanding Bowman, another supposed accomplice, was custodian of the warehouse in which the goods were stored by their owner. It is well settled in this jurisdiction that although the jury should receive and act upon such testimony with caution, the unsupported testimony of an accomplice is sufficient to sustain a conviction if it satisfies the jury beyond a reasonable doubt of the guilt of the accused. State v. Rising, 223 N.C. 747, 28 S.E.2d 221; State v. Lippard, 223 N.C. 167, 25 S.E.2d 594; State v. Reddick, 222 N.C. 520, 23 S.E.2d 909; State v. Gore, 207 N.C. 618, 178 S.E. 209; State v. Herring, 201 N.C. 543, 160 S.E. 891; State v. Casey, 201 N.C. 185, 159 S.E. 337; State v. Shew, 196 N.C. 386, 145 S.E. 679; State v. Ashburn, 187 N.C. 717, 122 S.E. 833; State v. Bailey, 179 N.C. 724, 102 S.E. 406; State v. Palmer, 178 N.C. 822, 101 S.E. 506; State v. Jones, 176 N.C. 702, 97 S.E. 32; State v. Smith, 170 N.C. 742, 87 S.E. 98; State v. Shaft, 166 N.C. 407, 81 S.E. 932, Ann.Cas. 1916C, 627; State v. Neville, 157 N.C. 591, 72 S.E. 798; State v. Register, 133 N.C. 746, 46 S.E. 21; State v. Barber, 113 N.C. 711, 18 S.E. 515; State v. Miller, 97 N.C. 484, 2 S.E. 363; State v. Stroud, 95 N.C. 626; State v. Holland, 83 N.C. 624, 35 Am.Rep. 587; State v. Hardin, 19 N.C. 407; State v. Haney, 19 N.C. 390. Bowman was entrusted at most with the bare custody of the goods, whose possession in contemplation of law remained in the Brown-Rogers-Dixson Company until Tilley feloniously took and carried them away. State v. Ruffin, 164 N.C. 416, 79 S.E. 417, 47 L.R.A., N.S., 852; State v. Jarvis, 63 N.C. 556; State v. Jones, 19 N.C. 544; State v. Higgins, 1 N.C. 36; People v. Goldberg, 327 III. 416, 158 N.E. 680; Roeder v. State, 39 Tex.Cr.R. 199, 45 S.W. 570; Brill: Cyclopedia of Criminal Law, Section 765; 32 Am.Jur., Larceny, Section 59; 52 C.J.S., Larceny, § 43, page 836.

The defendant contends secondarily that he is entitled to a new trial because the trial judge erred in permitting the solicitor to cross-examine the State's witness Bowman, and to put in evidence the written statement signed by Bowman on November 23, 1951. The question of the validity of this contention turns in large measure on the common law rule which forbids a party to impeach his own witness.

This ancient rule has been roundly condemned by commentators on the law of evidence. Am.Law.Inst., Model Code of Evidence, pages 20, 119; Stansbury on North Carolina Evidence, Section 40, note 92; Wigmore on Evidence (Perm.Ed.), Sections 896-899. It is nevertheless accepted as sound law in this State. Indeed, it was given legislative recognition by the General Assembly of 1951. See G.S. § 1-568.25. The rule and its corollaries are thus exemplified in North Carolina decisions:

1. A party can not impeach his own witness either in a civil or in a criminal case. Morris v. Beaty Service Co., 214 N.C. 562, 199 S.E. 922; Clay v. Connor, 198 N.C. 200, 151 S.E. 257; State v. Neville, 175 N.C. 731, 95 S.E. 55; Worth Co. v. International Sugar Feed No. 2 Co., 172 N.C. 335, 90 S.E. 295; Smith v. Atlantic & C. Air Line R. Co., 147 N.C. 603, 61 S.E. 575; Kendrick v. Dellinger, 117 N.C. 491, 23 S.E. 438; Strudwick v. Brodnax, 83 N.C. 401; Wilson v. Derr, 69 N.C. 137; Shelton v. Hampton, 28 N.C. 216; Sawrey v. Murrell, 3 N.C. 397. Despite an early decision to the contrary (State v. Norris, 2 N.C. 429, 1 Am.D. 564), the rule applies to the State as well as to other litigants. State v. Freeman, 213 N.C. 378, 196 S.E. 308; State v. Cohoon, 206 N.C. 388, 174 S.E. 91; State v. Melvin, 194 N.C. 394, 139 S.E. 762; State v. Mace, 118 N.C. 1244, 24 S.E. 798; State v. Taylor, 88 N.C. 694 (overruling State v. Norris, supra.).

2. A party makes a witness his own within the rule forbidding impeachment by putting him on the witness stand and examining him as a witness at the trial of the cause. Strudwick v. Brodnax, *477 supra. A party does not make one his witness by subpoenaing him as a witness; or by causing him to be sworn as a witness; or by taking his deposition as a witness, unless he offers the deposition or part of it in evidence at the trial. Neil v. Childs, 32 N.C. 195; 58 Am.Jur., Witnesses, Section 793; 70 C.J., Witnesses, Section 992.

3. A party even makes an adverse party in the litigation his own witness, and by reason thereof is not allowed to impeach him if he calls and examines the adverse party as a witness at the trial of the cause. Helms v. Green, 105 N.C. 251, 11 S.E. 470, 18 Am.St.Rep. 893; Olive v. Olive, 95 N.C. 485; Strudwick v. Brodnax, supra. But a party does not make his adversary his witness by taking his adverse examination before the trial, unless he offers the adverse examination or part of it in evidence at the trial. Hudson v. Jordan, 108 N.C. 10, 12 S.E. 1029; Shober v. Wheeler, 113 N.C. 370, 18 S.E. 328. Moreover, a judgment creditor does not make a judgment debtor his witness by examining him in a proceeding supplemental to execution to compel him to disclose his assets. Coates Bros. v. Wilkes, 92 N.C. 376.

4. The reason ordinarily advanced in support of the rule forbidding a party to impeach his own witness is that in calling the witness the party represents him to be worthy of belief. Lynch v. Carolina Veneer Co., 169 N.C. 169, 85 S.E. 289; State v. Taylor, supra; Hice v. Cox, 34 N.C. 315. This reason and the rule grounded on it can have no application where the calling of the witness is required by law. A party may, therefore, impeach a witness, such as an attesting or subscribing witness to a will or other instrument, whom the law compels him to call. Smith v. Atlantic & C. Air Line R. Co. supra; Hice v. Cox, supra; Bell v. Clark, 31 N.C. 239; Crowell v. Kirk, 14 N.C. 355. A witness of this character is said to be the witness of the law rather than the witness of the party calling him. Bell v. Clark, supra.

5. To impeach a witness is to attack his credibility. McDowell v. Staley, 231 N.C. 65, 55 S.E.2d 798; Smith v. Atlantic & C. Air Line R. Co. supra; Helms v. Green, supra; Strudwick v. Brodnax, supra; Shelton v. Hampton, supra. The rule that a party cannot impeach his own witness precludes him from showing that the general character of the witness is bad (Hice v. Cox, supra; Neil v. Childs, supra), or that the witness made statements at other times inconsistent with or contradictory of his testimony at the trial. State v. Bagley, 229 N.C. 723, 51 S.E.2d 298; State v. Freeman, supra; State v. Melvin, supra; State v. Taylor, supra; Hice v. Cox, supra. The law will not permit a party to circumvent the rule by introducing the contradictory or inconsistent statements of the witness under the guise of corroborating evidence. State v. Bagley, supra; State v. Melvin, supra. " `In no aspect of the law of evidence can contradictory evidence be used as corroborating, strengthening, or confirming evidence.'" State v. Melvin, supra [194 N.C. 394, 139 S.E. 763]; State v. Lassiter, 191 N.C. 210, 131 S.E. 577.

6. The trial judge has the discretionary power to permit a party to cross-examine his own witness for a legitimate purpose. State v. Buck, 191 N.C. 528, 132 S.E. 151; Howell v. Solomon, 167 N.C. 588, 83 S.E. 609; State v. Cobb, 164 N.C. 418, 79 S.E. 419; Bank v. Carr, 130 N.C. 479, 41 S.E. 876; Crenshaw v. Johnson, 120 N.C. 270, 26 S.E. 810. Accordingly, the trial judge may let a party cross-examine his own witness, who is hostile or who surprises him by his testimony, for the purpose of refreshing the recollection of the witness and enabling him to testify correctly. State v. Vicks, 223 N.C. 384, 26 S.E.2d 873; State v. Inscore, 219 N.C. 759, 14 S.E.2d § 816; In re Will of Williams, 215 N.C. 259, 1 S.E.2d 857; State v. Noland, 204 N.C. 329, 168 S.E. 412; State v. Taylor, supra. In so doing, the trial judge may permit the party to call the attention of the witness directly to statements made by the witness *478 on other occasions. State v. Noland, supra; State v. Taylor, supra. But the trial judge offends the rule that a witness may not be impeached by the party calling him and so commits error if he allows a party to cross-examine his own witness solely for the purpose of proving him to be unworthy of belief. Morris v. Beaty Service Co., supra; State v. Neville 175 N.C. 731, 95 S.E. 55, supra; State v. Taylor, supra; State v. Scarborough, 152 La. 669, 94 So. 204; State v. Scott, 55 Utah 553, 188 P. 860. And even apart from the rule under present consideration, it is not permissible for a party to put before the jury under the guise of cross-examination incompetent matter inimical to his adversary. Ingram v. State, 78 Tex.Cr.R. 559, 182 S.W. 290; 58 Am.Jur., Witnesses, Section 622.

7. The rule which forbids a party to impeach his own witness does not contemplate that the party is bound by what his witness says. Consequently, he is at liberty to prove by other witnesses or other competent evidence a state of facts different from that to which his witness testifies. Matheny v. Central Motor Lines, 233 N. C. 673, 65 S.E.2d 361; McDowell v. Staley, supra; Ross v. Western Union Telegraph Co., 219 N.C. 324, 13 S.E.2d 571; State v. Cohoon, supra; Clay v. Connor, supra; Worth Co. v. International Sugar Feed No. 2 Co., supra; Lynch v. Carolina Veneer Co., supra; Smith v. Atlantic & C. Air Line R. Co., supra; State v. Mace, supra; Kendrick v. Dellinger, supra; Chester v. Wilhelm, 111 N.C. 314, 16 S.E. 229; Helms v. Green, supra; McDonald v. Carson, 94 N.C. 497; Coates Bros. v. Wilkes, supra; Gadsby v. Dyer, 91 N.C. 311; Strudwick v. Brodnax, supra; Hice v. Cox, supra; Shelton v. Hampton, supra; Spencer v. White, 23 N.C. 236. One of the greatest of jurists, Chief Justice Thomas Ruffin, declared that there is in this instance "no attempt to discredit the witness. A party may prove that the fact is not as it is stated to be by one of his witnesses; for that is merely shewing a mistake, to which the best of men are liable." Spencer v. White, supra. Another able judge, Justice Frederick Nash, said: "The other witnesses, in such case, are not called to discredit the first, but the impeachment is incidental and consequential only." Hice v. Cox, supra.

The case on appeal engenders the abiding impression that when he called Bowman to the witness stand as a State's witness, the solicitor knew that Bowman would give substantive testimony favorable to the defendant, and that the prospect of Bowman being influenced by examination or cross-examination to alter such testimony to the State's advantage was so remote as to be virtually nonexistent. Notwithstanding this knowlege, the solicitor put to Bowman by leave of the trial judge numerous leading and argumentative questions concerning the statement of November 23, 1951, and other matters which were so framed, whatever their true object may have been, as to suggest to the jury that the defendant was undoubtedly guilty and that Bowman was testifying falsely in giving evidence favorable to him. In the very nature of things, the immediate and inevitable result of the solicitor's cross-examination of the State's witness Bowman was to impeach Bowman and place before the jury incompetent matter harmful to the defendant. We are, therefore, constrained to hold in view of the circumstances revealed by the case on appeal now before us that the trial judge erred to the prejudice of the defendant in allowing the solicitor to cross-examine Bowman. We are also obliged to adjudge that the trial judge committed further prejudicial error in admitting in evidence Bowman's repudiated statement of November 23, 1951, which was incompetent for all purposes. Since they were never instructed as to how they were to consider it, the trial jurors undoubtedly accepted the statement as substantive evidence indicating the defendant's guilt as well as impeaching evidence pointing to Bowman's testimonial unreliability.

These errors necessitate a

New trial.

STATE v. TILLEY et al.

STATE
v.
TILLEY et al.