State v. . Staton

There was a judgment against the defendant, imprisoning him in the penitentiary for five years, from which he appealed. (814)

The facts are sufficiently adverted to in the opinion. It is needless to cite authority to sustain the familiar rule of evidence, that where a witness is impeached, either by contradictory testimony, cross-examination or an attack upon his character, his declarations, made soon after the transactions, to a third person, may be stated by himself and afterwards shown by such third person, in order to corroborate him. S. v. Whitfield, 92 N.C. 831; S. v. Rowe, 98 N.C. 629.

A witness may be compelled, at the instance of a party who is examining him or cross-examining him, to inspect a writing which is present in court, if the writing is in his handwriting, or it appear otherwise that there is reason to believe that by reading it his memory may be refreshed, so as to enable him to recollect clearly the transaction as to which he is testifying. 1 Greenleaf on Ev., sec. 436. If he recollects, after such inspection, to have seen the writing before, he may even be allowed to testify that at the time he last saw it or when he wrote it himself he knew the contents to be correct, though he now has no independent recollection of the facts. 1 Greenleaf, sec. 437. It was, therefore, error to refuse to allow the memory of the witness Thigpen to be tested by causing him to look at his own memorandum of the testimony heard on the preliminary trial, in order that after such examination it might appear whether he would either have an independent recollection of the facts or would be (815) able to state that the memorandum was made correctly. If the paper had been offered as testimony to contradict the witness for the prosecution, we would have been confronted with the grave question whether a deposition or memorandum of evidence, offered either for the State or the defendant, is admissible unless it appear to have been written at the time of the examination and in the presence of the accused, and to have been signed by the witness. S. v. Valentine, 29 N.C. 227; S. v.Grady, 83 N.C. 645; S. v. Bridgers, 87 N.C. 562; S. v. Thomas, 64 N.C. 74; The Code, secs. 1144 and 1150. Conceding, however, that it is simply the declaration of the justice, made on the next day, when he was nearer to the transaction and his memory was possibly more distinct, it was the right of the defendant to demand that he inspect it, in order to refresh, if possible. his indistinct recollection. 1 Gr. Ev., sec. 437.

But if the witness had read the memorandum and had thereupon stated that he was enabled thereby to recall more distinctly the testimony of the detective, Rowe, and had modified his own evidence after so refreshing his memory as to bring it in perfect accord with the memorandum — the Attorney-General insists that no material conflict would even then have been shown between the testimony of Rowe on the trial and on the previous hearing — certainly no discrepancy that was not made equally to appear by the evidence of the magistrate as admitted. If the defendant could have derived no benefit from compelling the witness to inspect the paper, the error was, of course, harmless.

The witness Rowe testified on the trial that he did not give the name of the store at Penny Hill which defendant proposed he should break into, but that he thought it was Chase's store. The memorandum of Thigpen represents him as testifying that the defendant said to him: "Now, pretty soon everybody will go out to Hicks' store, and there will be nobody there but a little boy, about 13 or 14 years (816) old, and there is about $62 in the drawer, and we can go in and you can take hold of the boy and put your hand over his mouth and keep him from hallooing. I know where the money drawer is, and will go and break the drawer open," etc. The witness Rowe testified, also, that defendant said there was about $70 in the drawer, whereas both the testimony of Thigpen and the memorandum represent him as testifying at the previous hearing that the sum was $62 or $63. The exception had its origin in the failure of Thigpen to recollect whether on the former trial Rowe said he had a conversation with the defendant before or after he left his valise at Stancill's store, and from a proposition that upon this point he should refresh his memory. The testimony of Rowe as to the declarations of the defendant in reference to breaking into any store was not necessarily material to the inquiry whether he burned the house, as charged in the indictment. If objected to, the testimony of Rowe only have become material as explanatory of the ruse used by the witness to win in so short a time the full confidence of the defendant. Without recurring to his notes, Thigpen testified that, on the examination, the witness Rowe had stated that the defendant told him there was $62 or $63 in the drawer, thus contradicting Rowe. It does not appear in any way, however, why it was at all important to the proper conduct of the defense to inform the jury at what time the valise was deposited at Stancill's. If all these facts were collateral — had no bearing upon the issue of the guilt or innocence of the defendant — it is familiar learning that no evidence could have been offered to contradict a witness in relation to collateral matters, even when put upon his guard, on his examination-in-chief, unless where the evidence tended to show temper, disposition or conduct of the witness toward the cause of the parties. S.v. Patterson, 24 N.C. 246. If the memorandum shows no (817) conflict in the material portions of the testimony of the prosecuting witness as delivered on the two occasions, it is not competent to contradict him by other testimony at all, without putting him on his guard, nor after taking that precaution, unless the contradictory testimony tends to show bias. It was incumbent on the defendant, it seems to us, too, to have pointed out the particular fact as to which he proposed to refresh the memory of the magistrate and to have made it appear to the court how he might have contradicted the witness for the State as to material statements made by him. The memorandum, if it had been admitted as substantive evidence, would not have shown any contradictory statement of the prosecuting witness as to the confession of the defendant that he burned the building, and the declarations of the defendant as to other matters were collateral and immaterial. If it had been material to show that the witness stated on one occasion that he deposited his valise behind Stancill's store, and on another that he placed it, at a certain stage in the consultation, with Staton, behind that store, the admission of the memorandum would have failed to accomplish that object, since it does not appear from the justice's notes where he first left his valise, whether in or behind Stancill's store. In fact, the court was asked to allow the witness to refresh his memory upon this particular portion of the testimony only, and the error in refusing to do so would seem to be harmless if the memorandum would have shown no contradiction as to the place of depositing the valise.

The prosecuting witness having testified that the defendant told him that he sold the property (cotton) taken out of the barn that he had burned, to one Warren, the justice, Thigpen, on his cross-examination, was asked if he knew Warren, and upon his answering in the (818) affirmative, the defendant proposed to prove by him that Warren was a man of good character. Warren had not been introduced and, so far as the record shows, was not examined as a witness. Unless a defendant, in the trial of a criminal prosecution, puts his character in issue, either by becoming a witness or offering testimony to show that it is good, it is not competent for the State to impeach it; and while the character of a witness may be shown for the purpose of sustaining or impairing the force of his testimony, it does not tend to enlighten the jury upon the question of guilt or innocence to know whether a person who is neither party nor witness, but is only mentioned in the confession of one accused of crime, as the receiver of stolen goods, is of good or bad reputation. S. v. Davis, 92 N.C. 764; S. v. Thomas, 98 N.C. 599; 1 Gr. Ev., sec. 52; 1 Roscoe, star pp. 102 and 103.

We conclude, therefore, that there was no error which entitles the defendant to a new trial.

Affirmed.

Cited: S. v. Finley, 118 N.C. 1167; Burnett v. R. R., 120 N.C. 518;S. v. Register, 133 N.C. 752; S. v. Bradley, 161 N.C. 291.

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