State v. Anderson

169 S.E.2d 38 (1969) 5 N.C. App. 614

STATE of North Carolina
v.
Horace ANDERSON.

No. 6928SC323.

Court of Appeals of North Carolina.

August 13, 1969.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. Jean A. Benoy and Sp. Asst. Atty. Gen. Thomas J. Bolch for the State.

Sanford W. Brown, Asheville, for defendant appellant.

BRITT, Judge.

The first question presented is whether the superior court erred in overruling defendant's plea of former jeopardy, based upon the proceedings in the county court.

So far as the record indicates, the misdemeanor charge of assault on a female remains pending in the superior court, on appeal de novo from the county court. "When the effect of an appeal is to transfer the entire record to the appellate court, and to cause the action to be retried in that court, as if originally brought therein, as is the case when appeals are taken from a justice's court upon questions of law and fact, the judgment appealed from is completely annulled, and is not thereafter available for any purpose." (Emphasis added.) State v. Goff, 205 N.C. 545, 172 S.E. 407. See also State v. Stilley, 4 N.C.App. 638, 167 S.E.2d 529; G.S. § 15-177.1; G.S. § 7A-288.

The defendant might well raise the plea of former jeopardy, based upon a final judgment in this case, as a bar to further prosecution of the warrant charging assault on a female. State v. Midyette, 270 N.C. 229, 154 S.E.2d 66; State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838, 6 A.L.R. 3d 888; 2 Strong, N.C. Index 2d, Criminal Law, § 26, p. 518. However, the misdemeanor case is not presently before us. We hold that the superior court did not err in overruling defendant's plea of former jeopardy interposed in the felony case now before us.

The next question presented is whether the parol testimony of the contents of the note handed to the prosecuting witness by the defendant violated the best evidence rule.

This rule appears to be well established in this jurisdiction. "Evidence that a record or document had been lost and could not be found after due diligence, or had been destroyed, is sufficient foundation for the admission of secondary evidence thereof, either by introducing a properly identified copy thereof, or by parol evidence of its contents. But as a general rule parol evidence in regard to writings is properly excluded in the absence of a showing of any effort to procure the writings to offer them in evidence." 3 Strong, N.C. Index 2d, Evidence, § 31, p. 647. Also Stansbury, N.C. Evidence 2d, § 192, p. 503. Here, the record of the proceedings in superior court is devoid of any explanation for the absence of the note itself. We may not speculate as to its whereabouts and disregard the rule.

The State contends that the contents of the note were collateral and therefore the admission of the parol testimony was not prejudicial, citing Stansbury, N.C. Evidence 2d, § 191, p. 499, and State v. Ferguson, 107 N.C. 841, 12 S.E. 574.

It is clear that an essential element of the offense involved here is the defendant's intention at the time of the assault. State v. Walsh, 224 N.C. 218, 29 S.E.2d 743; State v. Jones, 222 N.C. 37, 21 S.E.2d 812; State v. Adams, 214 N.C. 501, 199 S.E. 716. In State v. Jones, supra, in an opinion by Winborne, J., (later C. J.), and quoting from State v. Massey, 86 N.C. 658, it is said: "In order to convict a defendant on the charge of assault with intent to commit rape, the evidence should show not only an assault, but that the defendant intended to gratify his passion on the person of the woman, and that he intended to do so, at all events, notwithstanding any resistance on her part."

The contents of the note were a vital part of the State's evidence in showing the intent of defendant; certainly, the contents of the note were pertinent to the issue rather than collateral. When defendant's counsel objected to the oral testimony regarding the contents of the note, he specifically stated that "the note itself is the best evidence." Inasmuch as the contents of the note were directly in issue, the State was under an obligation to explain the absence of the note itself. We are not convinced that this note falls within the exception for "loose, casual papers." Herring v. Ipock, 187 N.C. 459, 121 S.E. 758; State v. Credle, 91 N.C. 640; Stansbury, N.C. Evidence 2d, § 191, p. 500. The assignment of error is well taken, necessitating a new trial.

While the State's evidence tends to show evil abuse of the young prosecuting witness, the defendant, upon his plea of not guilty, is entitled to a trial free from substantial error in law before he may be convicted and punished for the commission of so serious a crime. State v. Walsh, supra.

As there must be a new trial, we deem it unnecessary to consider the other questions brought forward and argued in defendant's brief.

New trial.

MALLARD, C. J., and PARKER, J., concur.