State v. Murray , 27 N.C. App. 130 ( 1975 )

218 S.E.2d 189 (1975) 27 N.C. App. 130

STATE of North Carolina
v.
Ricky MURRAY.

No. 7515SC501.

Court of Appeals of North Carolina.

October 1, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Claudette Hardaway, Raleigh for the State.

John P. Paisley, Jr., Graham, for defendant appellant.

PARKER, Judge.

The State's witness, Allison, testified that he had received a one-day to four-year sentence for his part in the break-in at the Queen Ann Grill. On cross-examination he denied that any promises had been made to him concerning his testimony and specifically denied that while in the courtroom on the morning of defendant's trial he stated to defendant's witness, Ronald Stewart, that he had been told that he would serve the entire four years if he did not testify in this case. When presenting evidence for the defense, defendant's counsel asked Stewart to tell the jury what Allison had stated to him on the morning of the trial. Upon objection being made by the district attorney, the court sent the jury out and conducted a voir dire hearing. At this hearing Stewart testified in the absence of the jury that Allison stated to him on the morning of defendant's trial that the officials at Umstead Youth Center where Allison was incarcerated had told him "that if he did not testify for the State that they would see to it that he did pull the maximum for his sentence." At the voir dire hearing Allison denied that he had made any such statement to Stewart and denied that any official of the Department of Correction had threatened him or said that he would have to pull four years if he didn't testify for the State. At the conclusion of the voir dire examination the court found as a fact that Allison was incarcerated as a committed youthful offender, that he was under review for conditional release, that his release was in no way connected with his giving testimony in this cause, and concluded that Allison's testimony was given without threat or promise having been made by officials of the State of North Carolina.

In taking from the jury's consideration Stewart's testimony as to what Allison had stated to him on the morning of the trial, the court committed error.

"It is a general rule of evidence is North Carolina ``that answers made by a witness to collateral questions on cross-examination are conclusive, and that the party who draws out such answers will not be permitted to contradict them; which rule is subject to two exceptions, first, where the question put to the witness on cross-examination tends to connect him directly with the cause or the parties, and second, where the cross-examination is as to a matter tending to show motive, temper, disposition, conduct, or interest of the witness toward the cause or parties.'" State v. Long, 280 N.C. 633, 639, 187 S.E.2d 47, 50 (1972).

Here, the question put to Allison on cross-examination was clearly as to a matter tending to show his motive and interest in testifying against the defendant. Therefore, defendant was not bound by Allison's answer but was entitled to prove the matter by other witnesses. 1 Stansbury's N.C. Evidence (Brandis Revision) § 48, p. 137. The State's entire case depended solely upon Allison's testimony. No other evidence connected defendant in any way with the crime charged. Allison's credibility was thus the paramount matter for the jury to determine, and when the court excluded Stewart's testimony from the jury's consideration as noted above, defendant suffered prejudicial error for which he is entitled to a new trial.

Apart from the foregoing, there is no evidence in the record which would support a finding that at the time the break-in was committed, defendant was present or was situated where he could give Allison and Stewart any advice, aid, or encouragement. Since there was no evidence that defendant was either actually or constructively present when the offense was committed, he could be guilty at most of being an accessory before the fact. Upon remand of this case, defendant may be tried under the original bill of indictment for the offense of being an accessory before the fact to the felonious breaking and entering described in the indictment. State v. Wiggins, 16 N.C.App. 527, 192 S.E.2d 680 (1972). In this connection, however, we note that the original bill of indictment describes the premises entered as "a building occupied by Gilbert Pore trading as Queen Ann Grill used as a restaurant located at 203 Queen Ann Street, Burlington, North Carolina," while the evidence indicates that the building entered was one occupied by Gilbert Pore trading as Queen Ann Grill located at 803 Queen Ann Street. Although we do not consider the discrepancy in the number of the street address to constitute a fatal variance in view of the other language identifying the premises, it may be that the district attorney, should he so elect, may decide to prepare a new bill of indictment charging defendant with being an accessory before the fact to the felonious breaking and entering by Allison and Stewart of the building occupied by Pore trading as the Queen Ann Grill, designating the building by the correct street number address.

New trial.

BRITT and CLARK, JJ., concur.