State v. . Holly

We have examined the record with the care the importance of the case demands, and conclude that there is error which entitles the prisoner to a new trial.

The hypothetical question propounded by the court to the (491) medical expert, Dr. Russell Bellamy, included an important circumstance, as to which there was no evidence, to wit, that there had been a chemical examination of a part of the liver and a part of the lungs of the deceased, and that strychnine was found in each. Professor Withers, who made the chemical examination, stated expressly that he made no test of the liver and lungs, and that his test was confined to the stomach. The clear inference from the evidence is that, but for the incorporation of this circumstance into the question, the answer of the expert would have been different, and the prisoner would have had the benefit of an opinion favorable to him, instead of the disadvantage of one that was injurious.

The evidence indicates that strychnine may be in the stomach and death ensue from other causes, and that the quantity found in the stomach does not contribute to death, as it has not been assimilated. It is the strychnine taken up by the system which is dangerous, and this is traced in the liver, lungs and other organs. The materiality of the answer to the question and its effect on the jury is apparent when it is remembered that the cause of the death of the deceased was in dispute, the State contending it was caused by strychnine administered by the prisoner, and the prisoner contending it was from suffocation by smoke, and that two expert witnesses for the State testified the latter was the cause of death.

The injurious effect of this evidence is intensified by the fact that the question was propounded by the court and not by counsel. It not only elicited an opinion upon facts not in evidence, but the jury might well infer that the court — thought there was evidence that strychnine had been found in the liver and lungs.

It is not necessary in the statement of a hypothetical question that all the facts should be stated. Opinions may be asked for upon different combinations of facts on the examination in chief and on the cross-examination, but "to allow on the direct examination, an hypothetical question to be put, which assumes a state of facts not warranted by the testimony, is error, and counsel will never be permitted, on the direct examination, to embrace in an hypothetical question anything (492) which the testimony does not either prove or tend to prove." Rogers Ex. Ev., sec. 27; People v. Hall, 48 Mich. 489; Reber v.Herring, 115 Pa. St., 609.

We also think there was error in allowing the State to ask Dr. Bell, who testified to the good character of the prisoner, if he had not heard that the prisoner had been accused of killing his wife, and his reply, "Not until after the present charge was brought."

The defendant did not testify in his own behalf, but he was entitled to introduce evidence of his good character, as a circumstance tending to show the improbability of his having committed the crime alleged against him. S.v. Laxton, 76 N.C. 216; S. v. Hice, 117 N.C. 783. When he avails himself of this right, the State can introduce evidence of bad character, but can not, by cross-examination or otherwise, offer evidence as to particular acts of misconduct.

The rule is just, and based upon sound reason.

A party charged with crime may be prepared to defend an attack upon his general character, which is a single fact, but he could not have at the trial witnesses to explain the conduct of a lifetime.

Again questions of this character, if permitted, would tend to multiply issues, would needlessly prolong trials, and would be calculated to distract the minds of jurors from the real issue.

If a witness may state that he has heard that the defendant had been charged with killing his wife, the defendant ought to be allowed, in reply, to show that the charge is false, and to do so might involve the examination of many witnesses.

If one collateral question of this character can be raised and tried, the same rule would permit a hundred others.

The authorities in this State are numerous and uniform that it is error to allow such questions on the cross-examination of a witness as to character.

In Barton v. Morphes, 13 N.C. 520, it was held inadmissible to ask "if he had not heard Morton accused of stealing a penknife"; in Luther v. Skeen, 53 N.C. 357, that "there was a current report in the (493) neighborhood that plaintiff had sworn to lies while living in Randolph"; in S. v. Bullard, 100 N.C. 487, "Do you not know that it was extensively talked about and said that the defendant practiced a fraud upon the firm of Worth Worth?"; in Marcom v. Adams,122 N.C. 222, "Have you not heard that defendant had committed forgery?", "Do you not know the defendant had been indicted for forgery? "; and in Coxe v. Singleton, 139 N.C. 362, "Have you not heard that the defendant committed rape on a negro girl?", "Have you not heard he padded his pay-roll at the mill?"

The first of these cases, Barton v. Morphes, supra, which has been frequently approved, is of special importance, in that Chief JusticeHenderson considers the ground frequently urged as a reason for admitting questions like the one under consideration, as a means of testing the character witness. He says: "The ground on which the counsel for the defendant placed the question can not render the evidence admissible, namely, that although not evidence in chief, it is admissible to impeach the character of the supporting witness; that witness having given the first a good character, when he knew such reports had been circulated, this would be doing that indirectly which the law forbids to be done directly, viz., impeaching the character of the witness in chief by specific charges; and that, too, not by common reputation, but by a mere report, which is very different. For the law supposes the latter to be true, and therefore admits it as evidence. But it makes no such supposition in favor of a mere report, which we know to be most commonly false. Reports may ripen into common reputation and common belief. When they arrive at that stage, it is supposed that they are true. They have been the best test of their truth,common opinion and belief, and cease to be mere reports."

There is another objection to the answer of the witness, as applied to the facts of this case, and that is that the evidence related to a fact affecting the character of the defendant subsequent to the time of the commission of the offense alleged against him.

When the defendant is not a witness, evidence of his general character should be confined to the time preceding the crime charged. S. v.Johnson, 60 N.C. 151. The rule is otherwise if he testifies in (494) his own behalf, as his credibility is then involved. S. v. Spurling,118 N.C. 1250.

That the evidence was prejudicial can not be doubted. The prisoner was charged with murdering, by poison, a member of his household, and the evidence was circumstantial. It was calculated to excite feeling against him in the minds of the most intelligent and upright jurors to know that he had been charged with killing his wife.

It is permissible to test the character witness by inquiring as to his sources of information (S. v. Perkins, 66 N.C. 126), and he may be asked if there was not a general reputation, prior to the controversy, as to particular matters, tending to discredit; but when this is done the jury should be instructed that such evidence can only be considered as bearing on the evidence of the witness who testifies as to character. The evidence was withdrawn from the jury, and the error in admitting it was not cured in the charge.

The competency of the record of the druggist, as the evidence is now presented, is doubtful, but it is not necessary to pass upon it, as the State can produce the witness who made the entries at the next trial. There must be a

New trial.

Cited: S. v. Stewart, 156 N.C. 640; S. v. Dove, ibid., 658, 659;Woodie v. Wilkesboro, 159 N.C. 355; Edwards v. Price, 162 N.C. 245; S.v. Robertson, 166 N.C. 361; S. v. Cathey, 170 N.C. 796; S. v. Killian,173 N.C. 796.