State v. Hart

80 S.E.2d 901 (1954) 239 N.C. 709

STATE
v.
HART.

No. 218.

Supreme Court of North Carolina.

March 24, 1954.

Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

Salmon & Hooper, Lillington, for defendant.

ERVIN, Justice.

The defendant stresses his exceptions to the disallowance of his counsel's cross-examination of the State's witnesses Willie Lockamy and Floyd Suitt, Jr., as to their having brought civil actions against him based on the identical acts involved in this criminal prosecution.

Truth does not come to all witnesses in naked simplicity. It is likely to come to the biased or interested witness as the image of a rod comes to the beholder through the water, bent and distorted by his bias or interest. The law is mindful of this plain psychological principle when it fashions rules of evidence to aid jurors in their search after truth. As a consequence, the law decrees that "any evidence is competent which tends to show the feeling or bias of a witness in respect to the party or the cause," and that jurors are to consider and weigh evidence of this character in determining the credibility of the witness to whom it relates. State v. Sam, 53 N.C. 150. To enable litigants to present such evidence to jurors, the law establishes and enforces these rules:

1. A party to an action or proceeding, either civil or criminal, may elicit from an opposing witness on cross-examination particular facts having a logical tendency to show that the witness is biased against him or his cause, or that the witness is interested adversely to him in the outcome of the litigation. State v. Jones, 229 N.C. 276, 49 S.E.2d 463; Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 42 S.E.2d 593; Star Manufacturing Co. v. Atlantic Coast Line R. Co., 222 N.C. 330, 23 S.E.2d 32; State v. Roberson, 215 N.C. 784, 3 S.E.2d 277; State v. Beal, 199 N.C. 278, 154 S.E. 604; Riverview Milling Co. v. State Highway Commission, 190 N.C. 692, 130 S.E. 724; Bailey v. City of Winston, 157 N.C. 252, 72 S.E. 966; Stewart v. Stewart, 155 N.C. 341, 71 S.E. 308; State v. Harston, 63 N.C. 294. Under this rule, a witness for the prosecution in a criminal case may be compelled to disclose on cross-examination that he has brought, or is preparing to bring a civil action for damages against the accused based on the acts involved in the criminal case. Villaroman v. United States, 87 U.S.App.D.C. 240, 184 F.2d 261, 21 A.L.R. 2d 1074; Cabel v. State, 18 Ala.App. 557, 93 So. 260; State v. McLemore, 99 Kan. 777, 164 P. 161; Coleman v. Commonwealth, 208 Ky. 601, 271 S.W. 662; Commonwealth v. Marcellino, 271 Mass. 325, 171 N.E. 451; People v. Drolet, 157 Mich. 90, 121 N.W. 291; State v. Decker, 161 Mo.App. 396, 143 S.W. 544; State v. Williams, 16 N.J.Super. 372, 84 A.2d 756; Hoffman v. State, 85 Tex. Crim. 11, 209 S.W. 747; Lane v. Commonwealth, 190 Va. 58, 55 S.E.2d 450; State v. Constantine, 48 Wash. 218, 93 P. 317; 70 C.J., Witnesses, § 1189.

2. Despite dicta, State v. Stone, 226 N.C. 97, 36 S.E.2d 704, State v. Coleman, 215 N.C. 716, 2 S.E.2d 865, and decision, State v. Wray, 217 N.C. 167, 7 S.E.2d 468, to that effect, evidence obtainable by cross-examination showing bias or interest of an opposing witness is not to be revealed in one case and concealed in another at the caprice or the discretion of the trial judge. Cross-examination of an opposing witness for the purpose of showing his bias or interest is a substantial legal right, which the trial judge can neither abrogate nor abridge to the prejudice of the cross-examining party. State v. Roberson, supra; State v. Harston, supra; Common-wealth v. Taylor, 319 Mass. 631, 67 N.E.2d 237; Commonwealth v. Sansone, 252 Mass. 71, 147 N.E. 574; Commonwealth v. Russ, 232 Mass. 58, 122 N.E. 176; State v. Radon, 45 Wyo. 383, 19 P.2d 177; 58 Am.Jur., Witnesses, § 715; 70 C.J., Witnesses, § 1165. A contrary rule would substitute the whim of the trial judge for the law of the land, which certainly contemplates that the causes of all men in like circumstances are to be determined by uniform laws, impartially administered.

3. Where a party cross-examines an adverse witness as to matters which tend to show the partiality of the witness for his adversary or the hostility of the witness toward him, the party is not bound by the answers of the witness denying partiality or hostility, but is at liberty to contradict the witness by the testimony of other persons disclosing such partiality or such hostility. State v. Spaulding, 216 N.C. 538, 5 S.E.2d 715; State v. Roberson, supra; State v. Banks, 204 N.C. 233, 167 S.E. 851; Scales v. Lewellyn, 172 N.C. 494, 90 S.E. 521; In re Craven's Will, 169 N.C. 561, 86 S.E. 587; State v. Crook, 133 N.C. 672, 45 S.E. 564; Cathey v. Shoemaker, 119 N.C. 424, 26 S.E. 44; State v. Dickerson, 98 N.C. 708, 3 S.E. 687; State v. Ballard, 97 N.C. 443, 1 S.E. 685; Kramer v. Thomson-Houston Electric Light Co., 95 N.C. 277; State v. Davis, 87 N.C. 514; State v. Roberts, 81 N.C. 605; Jones v. Jones, 80 N.C. 246; Clark v. Clark, 65 N.C. 655; State v. Kirkman, 63 N.C. 246; State v. Sam, supra; State v. McQueen, 46 N.C. 177; Edwards v. Sullivan, 30 N.C. 302; State v. Patterson, 24 N.C. 346, 38 Am.Dec. 699.

The circumstance that the State's witnesses Lockamy and Suitt were suing the defendant for damages in civil actions based on the acts involved in the prosecution for manslaughter showed that they were interested in pecuniary ways in the conviction of the defendant. These observations of the Supreme Judicial Court of Massachusetts concerning the prosecuting witness Lombard in Commonwealth v. Marcellino, supra [271 Mass. 325, 171 N.E. 452], are rather relevant:

"Lombard testified as a witness called by the Commonwealth. On cross-examination he was asked, ``Is it not a fact that you have brought a civil suit for $5,000 against the defendant based on this assault which is now pending?' On objection this question was excluded. This was error. The question was designed to elicit information tending to show both bias and personal interest in the outcome of the indictment then on trial. It was of great importance to the witness that a verdict of guilty should be returned. Judgment against the defendant upon the indictment on trial would at the least have a strong tendency to prevent the defendant from testifying in his own behalf on the trial of the civil action brought by the witness against him or, if he testified, to impair the value of such testimony. In other respects it would be or might become a difficult obstacle in the defence of the civil case and an important advantage to the plaintiff in prosecuting it."

It cannot be said that the exclusion of the facts showing that Lockamy and Suitt were suing the defendant for damages in civil actions based on the acts involved in the prosecution for manslaughter constituted harmless error. The exclusionary ruling enabled the State to present its witness Suitt to the jury as the defendant's friendly traveling companion, who was wholly free from temptation to be partial to the prosecution or hostile to the defense. The ruling likewise permitted the State to represent to the jury that its witness Lockamy had no motive to color his testimony to the defendant's disadvantage other than the emotive bias of a grief-stricken parent sorrowing for a lost child. The jurors might well have discounted the testimony of Lockamy and Suitt in a material manner had they been informed that these witnesses were pecuniarily interested in the conviction of the defendant. This being true, the exclusion of the facts relating to the civil actions brought by Lockamy and Suitt against the defendant constituted prejudicial error, necessitating a new trial.

Since the other challenged rulings may not recur on the retrial of the cause, we omit consideration of them.

New trial.