233 N.C. 636 | N.C. | 1951
In its charge the court instructed the jury as follows:
“Character testimony, gentlemen of the jury, is substantive testimony; that is, it is different than corroborative testimony. It is testimony that is direct from that person that testifies on the witness stand that a person has a good character and reputation, that is, direct to that point and that you should believe what that witness has testified to, whoever the witness might be.”
Tbe charge as it appears in tbis record makes no distinction between evidence of tbe good reputation of witnesses other than tbe defendant and of tbe defendant himself.
When tbe defendant does not go on tbe witness stand, but puts bis good reputation in issue, such testimony constitutes substantive evidence. Substantive evidence is direct evidence and direct evidence is that which immediately points to tbe question at issue. It is positive in character and is to be considered by the jury as bearing directly upon tbe issue of defendant’s guilt or innocence of tbe crime charged, upon tbe theory that .a man of good character who has pursued an honest and upright course of conduct is unlikely to deviate therefrom and do a dishonest or grossly immoral act, as here charged, inconsistent with tbe record of bis past life. S. v. Bridgers, ante, p. 577, and cases cited.
On tbe other band, evidence of tbe good reputation of witnesses, other than tbe defendant, is merely corroborative in nature and is relevant and material only as bearing upon tbe credibility of their testimony. It is offered for tbe sole purpose of aiding tbe jury in determining what weight, if any, shall be given tbe testimony of tbe witnesses about whom such evidence has been offered.
Tbe quoted instruction draws no such distinction. It characterizes evidence of good reputation as substantive evidence, without qualification. It fails to define correctly tbe meaning of direct evidence and seemingly directs tbe jury that it should believe tbe witness about whom such testimony was offered “whoever tbe. witness might be.”
It is entirely possible that tbe record is not an exact transcript of tbe charge as actually given by tbe court below. But we are bound by tbe record as it comes to tbis Court and must decide tbe questions presented as they appear therein.
On authority of S. v. Bridgers, supra, tbe quoted instruction must be beld for prejudicial error for which there must be a
New trial.
