State v. Springs

Hoee, J.

With certain recognized exceptions, applicable chiefly in civil causes, and unless expressly made so by statute, hearsay evidence is not competent in the trial of issues determinative of substantive rights, a position particularly insistent where such issues involve the life or liberties of the litigant. King v. Bynum, 137 N. C., 491; Hopt v. The People of Utah, 110 U. S., 574; Mima, Queen v. Hepburn, 11 U. S. (7th Cranch), 290; 1st Elliott on Evidence, secs. 315-319; 1 Greenleaf (16 ed.), sec. 99 a; Lockhart on Evidence, sec. 138; Wharton’s Criminal Evidence (9 ed.), sec. 225.

In testimony of this character, so essentially liable to abuse, the witness is giving, not his own evidence under oath, but what he has heard some other person say, and among many other reasons, the evidence is objectionable because the declarant, who is the real witness, has not spoken under the sanction of an oath, and the party affected has not been afforded the opportunity to cross-examine the witness. Speaking to some of the principle objections to such evidence, Professor Greenleaf, supra, says :

“Subject to these qualifications and seeming exceptions (to be later examined), the general rule of law rejects all hearsay'reports of transactions, whether verbal or written, given by persons not produced as witnesses. The principle of this rule is that such evidence requires credit to be given to a statement made by a person who is not subjected to the ordinary tests enjoined by the law for ascertaining the correctness and completeness of his testimony; namely, that oral testimony should be delivered in the presence of the court or a magistrate, under the moral and legal sanctions of an oath, and where the moral and intellectual character, the motives and deportment of the witness can be ■examined, and his capacity and opportunities for observation, and his memory, can be tested by a cross-examination. 'Such evidence, more-■o.ver, as to oral declarations, is very liable to be fallacious, and its true ■value is, therefore, greatly lessened by the probability that the declaration was imperfectly beard,, or was misunderstood, or is not accurately remembered, or has been perverted. It is also to be observed that the persons communicating such evidence are not exposed to the danger of a prosecution for perjury, in which something more than the testimony of one witness is necessary in order to a conviction; for where the declaration or statement is sworn to have been made when no third person was present, or by a person who is since dead, it is hardly possible to punish the witness even if his testimony is an entire fabrication.”

' And in Mima Queen v. Hepburn, supra, Chief Justice Marshall, speaking to the subject, said': “It was very justly observed by a great judge that ‘all questions upon the rules, of evidence are of-vast importance to all orders and degrees of men; our lives, our liberty-, and our property are all concerned in the support of these rules, which have been matured by the wisdom of ages and are now revered from their antiquity and the good sense in which they are founded.’ ”

“One of these rules is that ‘hearsay’ evidence is in its own nature inadmissible. That this species of testimony supposes some better testimony, which might be adduced in the particular case, is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency, to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover, combine to support the rule that hearsay evidence is totally inadmissible.

“To this rule there are some exceptions which are said to be as old as the rule itself. These are cases of pedigree, of prescription, of custom, and, in some cases, of boundary. There are also matters of general and public history which may be received without that full proof which is necessary for the establishment of a private fact.”

The principle referred to and commended by these authorities applies to prosecutions for offenses against the prohibition laws, and in cases like the present, is held to exclude evidence of general reputation of the place where the specific offense is alleged to have been committed, unless, as stated, it has been made competent by some valid statute on the subject. Cobleigh v. McBride et al., 45 Iowa, 116; 4th Elliott on Evidence, sec. 3170; 23 Cyc., p. 251.

In this last citation it is said: “The character of the place kept by defendant may be shown by circumstantial evidence tending to show the purpose for which it was used or the kind of business carried on there, but evidence of the reputation of the place, or what people say as to its character or uses, should not be admitted, except where a statute makes such reputation a pertinent fact in the prosecution, or declares it to be competent evidence.” And there is, too, direct decision with us that where evidence of the kind in question is incompetent because of being hearsay, the infirmity is not removed by terming it or offering it in corroboration. Holt v. Johnson, 129 N. C., 138.

In the recent case of S. v. McNeill, 182 N. C., 853 and 860, the Court was not properly advertent to the well established and wholesome principle in the laws of evidence excluding hearsay in the trial of causes of this character, and the case in that respect and for that reason must be considered as disapproved.

The case of S. v. Price, 175 N. C., 804 and 806, to which we were also cited, in no way militates against our present ruling, for the charge there was for vagrancy in keeping a bawdy house, and in reference to which our statute, C. S., 4347, expressly makes the general reputation of the house admissible and competent. The only statute claimed to have any possible bearing on the question, C. S., 3383, authorizing a conviction on “circumstantial as well as direct evidence,” seems to refer exclusively to prosecutions under 0. S., 3378, which, prohibits engaging in the business of selling, etc., or otherwise handling spirituous liquors for the purpose of gain, while defendant in the present case is indicted under sections 3379 and 3385, which constitute distinct and separate offenses, and if this section 3383 could be given a broader significance, we are of opinion that its purpose and effect is merely to relieve the prosecution of the necessity of offering direct evidence of any specific sale, and did not and was not intended to make any change in the kind and character of the circumstances as heretofore considered pertinent in the issue. A proper illustration of the true meaning of the section appears in S. v. Ingram, 180 N. C., 672, where the State was allowed to prove that drinking crowds were in the habit of frequenting defendant’s place of business. And to the same effect was the question—answer admitted in S. v. Mostella, 159 N. C., 459, to wit: “The character of the people that usually frequented defendant’s pool room.” Question asked and admitted to show drunkenness about the premises. These were both objective facts given in by sworn witnesses, clearly relevant as tending to show the offense charged, and could in no sense be considered as hearsay.

We have had occasion before during the present term, in S. v. Mills ante, 694, to advert to the great importance of adhering to rules and precedents established and recognized as necessary to insure a fair and impartial trial of men accused of crime both in the reception of evidence and otherwise, and we must hold that in permitting over defendant’s obj’ection three or four witnesses to testify that the reputation of defendant’s place was bad for selling liquor, and in submitting same in the charge as an independent circumstance tending to show guilt, defendant has, in effect, been erroneously convicted by means of hearsay evidence, and is entitled to a new trial of the issue.

New trial.