State v. Warren , 236 N.C. 358 ( 1952 )

72 S.E.2d 763 (1952) 236 N.C. 358

STATE
v.
WARREN.

No. 293.

Supreme Court of North Carolina.

October 29, 1952.

C. W. Beaman and K. A. Pittman, Snow Hill, for defendant, appellant.

Harry McMullan, Atty. Gen., and Samuel Behrends, Jr., Member of Staff, for the State.

DEVIN, Chief Justice.

The defendant assigns error in the ruling of the trial court in the admission of the following testimony elicited by the Solicitor from a State's witness, one of the officers who assisted in making the arrest:

"Q. From your observation of him, state whether or not, in your opinion, he was very much under the influence of liquor?

"Objection—overruled—exception.

"A. Yes, sir, his wife was there talking, and she said if he had not been going so slow he wouldn't have been caught."

At the outset we may observe that it is not entirely clear whether the questioned declaration of defendant's wife, as testified by the witness, referred to the defendant or defendant's witness Vines as having been "caught." But as the defendant was the only person caught, in the sense of having been arrested on that occasion, we must assume the wife's statement referred to the defendant.

There was nothing in the record to show that the statement was made in the presence of the defendant. Subsequently the defendant offered his wife as a witness, but she was not asked about the statement attributed to her by the State's witness.

The objection to the question propounded to the witness is without merit. It was competent for the officer to express his opinion that the defendant was intoxicated. State v. Dawson, 228 N.C. 85, 44 S.E.2d 527; State v. Harris, 213 N.C. 648, 197 S.E. 142.

The defendant, however, assigns error in the admission of the answer. The general rule is that if the answer of the witness to a proper question is not responsive and an incompetent statement beyond the scope of the question is added, the proper course is to object to the answer and move the court to strike out the answer or instruct the jury not to consider it. Edgerton v. Johnson, 217 N.C. 314, 317, 7 S.E.2d 535; Hodges v. Wilson, 165 N.C. 323, 81 S.E. 340. This course was not pursued by the defendant in this instance, with the result that the testimony of the State's witness incorporating the declaration of defendant's wife would be regarded as admitted without objection.

But the defendant challenges the competency of the declaration of defendant's wife on the ground that it violates the statutory prohibition of G.S. § 8-57 that neither husband nor wife shall be "competent or compellable" to give evidence against the other, and that the court erred in permitting it to be considered by the jury.

Ordinarily failure to object in apt time to incompetent testimony will be regarded as a waiver of objection, and its admission is not assignable as error, but this rule is subject to an exception where the introduction or use of the evidence is forbidden by statute in the furtherance of public policy. State v. Ballard, 79 N.C. 627; State v. Gee, 92 N.C. 756; Broom v. Broom, 130 N.C. 562, 41 S.E. 673; Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933; State v. Reid, 178 N.C. 745, 101 S.E. 104; State v. Aswell, 193 N.C. 399, 137 S.E. 174; State v. Kluttz, 206 N.C. 726, 175 S.E. 81.

In Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933, 935, where evidence rendered incompetent by statute was admitted, the Court said: "In such case it became the duty of the trial judge to exclude the testimony, and his failure to do so must be held for reversible error, whether exception has been noted or not." The headnote in State v. Ballard, 79 N.C. 627, accurately states the rule: "In such cases it is the duty of the judge, on his own motion, to disallow the evidence." And in Broom v. Broom, 130 N.C. 562, 41 S.E. 673, 674, the Court said that failure to object to testimony prohibited by statute could not make it competent. "No exception at the time was necessary."

In State v. Reid, 178 N.C. 745, 101 S.E. 104, 105, Justice Hoke, speaking for the Court, said: "Under our statute (Revisal, §§ 1634, 1635 [now G.S. § 8-57]) the wife was neither competent nor compellable to testify to her husband's hurt in a proceeding of this character and, a fortiori her declarations against him should not be received when not made in his presence nor by his authority."

While the statement attributed to the defendant's wife does not contain a direct or positive admission of guilt on the part of her husband, the inference is unmistakably incriminating and harmful.

Defendant's motion for judgment of nonsuit was properly denied. State v. Carroll, 226 N.C. 237, 37 S.E.2d 688.

For the reasons stated we think a new trial should be awarded, and it is so ordered.

New trial.