State v. Ellis

90 S.E.2d 225 (1955) 243 N.C. 142

STATE
v.
J. Wall ELLIS.

No. 293.

Supreme Court of North Carolina.

November 23, 1955.

Atty. Gen. Wm. Rodman, Jr., and Asst. Atty. Gen. Claude L. Love for the State.

Charles Hughes, Robert Lacey, Newland, Nance & Barrington, Fayetteville, G. D. Bailey, W. E. Anglin, Burnsville, for defendant.

DENNY, Justice.

The evidence tends to show that for several years there had been considerable ill feeling between the deceased and the defendant. Therefore, the State vigorously contended in the trial below that the defendant shot and killed the deceased, not while acting in his official capacity as Wildlife Protector but because of his malice and ill will toward him, and was, therefore, not acting in good faith as a peace officer. Notwithstanding this contention on the part of the State, when the defendant undertook to explain why he was going to where his deputy had gone to check the license of the man they had been following, the court sustained the State's objection thereto and would not permit the jury to consider his explanation, which was as follows: "The reason I went was because it is customary for the game warden, the game protector of the county to take charge of the citations, if any are to be written, and take care of proceedings in law, and that is why I went down there to the fishermen."

We think this was prejudicial error. Particularly in view of the fact that the court submitted this phase of the case to the jury strictly in accord with the State's contention. His right of self-defense in every portion of the charge was conditioned upon whether he was a trespasser upon the property of Ralph Young, or whether he was there in the discharge of his duties as a Wildlife Protector The express language of the charge, to which Exception No. 62 is directed, is as follows: "He (the defendant) had a right to be where he was at the of the alleged shooting if he were there in the capacity of Wildlife Protector, engaged in the discharge of his duties, as such, that is, engaged in the discharge of his official duties. It is a matter for you gentlemen to decide, whether he was actually engaged in that capacity."

Furthermore, the defendant having testified in his own behalf, and having offered numerous witnesses who testified they knew his general character and reputation in the community in which he lived, and that it is good, the State offered testimony tending to show that the character of the defendant is bad. One of these witnesses, the Reverend Bruce Buchanan, testified that he was the pastor of Roan Mountain Church; that he knew the general character and reputation of Ralph Young and Dewey Young, brothers of the deceased, and of Mrs. Charlie Young, wife of the deceased, and that the character of each is good. He was then asked if he knew the defendant, and he stated that he knew him only when he saw him. He said: "Personally, I do not know his general character." He was then asked this question: "Do you know it from the esteem in which he is held in the community in which he lives, what the people generally say about him?" Answer: "Yes. Well, it certainly is not good. It is bad." Exceptions were interposed to the question and answer and were overruled. However, on cross-examination, this witness said: "I don't know what his (J. Wall Ellis') reputation is in his community. I am not talking about just the Young community, but in my own immediate community. Yes, that is the Young community. I don't know what it is in the community in which he lives." Thus, this witness was permitted to testify that the defendant's character is bad, based not on his general reputation and character in the community in which he lives, but on what people generally say about him in the Young community where the homicide occurred. The witness, without any limitation as to the community in which the defendant lived, or otherwise, testified on direct examination that he did not know his general character. This disqualified him as a character witness against the defendant.

In State, to Use of Underwood v. Parks, 25 N.C. 296, Gaston, J., speaking for the Court on this subject, said: "It is essential to the uniform administration of justice, which is one of the best securities for its faithful administration, that the rules of evidence should be steadily observed. Among these, the rule which regulates the admission of testimony, offered to impeach the character of a witness, is now so well established and so clearly defined, that a departure from it must be regarded as a violation of law. The witness is not to be discredited, because of the opinions which any person or any number of persons may have expressed to his disadvantage, unless such opinions have created or indicate a general reputation of his want of moral principle. The impeaching witness must, therefore, profess to know the general reputation of the witness sought to be discredited, before he can be heard to speak of his own opinion or of the opinions of others, as to the reliance to be placed on the testimony of the impeached witness."

Avery, J., in delivering the opinion of this Court in State v. Coley, 114 N.C. 879, 19 S.E. 705, said: "No principle of evidence is more clearly settled in North Carolina, nor by a longer line of decisions, than that a witness will not be allowed to testify as to character until he shall have first qualified himself by stating that he knows the general reputation of the person in question."

In considering the identical question now before us, our Court, in the case of Edwards v. Price, 162 N.C. 243, 78 S.E. 145, said: "* * * it is only competent to ask the witness if he `knows the general character of the party.' If he answers, `No,' he must be stood aside. If he answers, `Yes,' then the witness can of his own accord qualify his testimony as to what extent the character of the party attacked is good or bad."

It is said in Greenleaf on Evidence, section 461, "It is not enough that the impeaching witness professes merely to state what he has heard `others say'; for those others may be but few. He must be able to state what is generally said of the person, by those among whom he dwells, or with whom he is chiefly conversant; for it is this only that constitutes his general reputation or character. And, ordinarily, the witness ought himself to come from the neighborhood of the person whose character is in question." Gaines v. Relf, 12 How. 472, 555, 13 L. Ed. 1071, at page 1106.

Likewise, in 20 Am.Jur., Evidence, section 326, page 305, it is said: "Although there is some difference of opinion as to the kind of evidence by which character may be proved, the generally prevailing rule is that testimony to prove the good or bad character of a party to a civil action or of the defendant in a criminal prosecution must relate and be confined to the general reputation which such person sustains in the community or neighborhood in which he lives or has lived," citing numerous authorities.

For the reasons stated, we have concluded that the defendant is entitled to a new trial and it is so ordered. Therefore, it becomes unnecessary to consider or discuss the remaining exceptions and assignments of error.

New trial.