State v. Gavin

EkviN, J.

The testimony of the State’s witness to the effect that two years before the trial she read newspaper articles stating that the accused had performed abortions on two other women was highly prejudicial hearsay, and ought to have been excluded. Randle v. Grady, 228 N.C. 159, 45 S.E. 2d 35; Teague v. Wilson, 220 N.C. 241, 17 S.E. 2d 9; Greene v. Carroll, 205 N.C. 459, 111 S.E. 627; Young v. Stewart, 191 N.C. 297, 131 S.E. 735.

We are convinced that the prejudicial effect of the incompetent evidence was not removed from the minds of the jurors by the statement of the trial judge that he was “going to strike it,” or by his direction to the jurors not to consider it. This opinion is not based solely upon the theory so-ably expounded by Mr.. Justice Winborne in the recent case of S. v. Choate, 228 N.C. 491, 46 S.E. 2d 476. It rests in substantial measure upon the significant fact that subsequent to its attempted withdrawal, the trial court recalled the illegal testimony to the minds of the jurors with much vividness by eliciting from the State’s witness evidence that she visited the accused because of “a news item” she had read, and by instructing the jury that the State contended that such witness “had read some item in the newspaper, relating to Hattie Gavin, and that in consequence of that she came to her home.”

For these reasons, the conviction and judgment are vacated, and the defendant is granted a

New trial.