State v. Garner

238 S.E.2d 653 (1977) 34 N.C. App. 498

STATE of North Carolina
v.
James A. GARNER, Jr.

No. 7719SC554.

Court of Appeals of North Carolina.

November 16, 1977.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Norma S. Harrell, Raleigh, for the State.

Bell & Ogburn by Charles T. Browne and William H. Heafner, Asheboro, for defendant-appellant.

VAUGHN, Judge.

The defendant assigns as error, on several grounds, the admission into evidence of conversations and actions of his mother relating to the payment of money. He first argues that testimony that defendant's mother came to the prosecutrix's home and gave her a check was incompetent as hearsay. "Evidence, oral or written [or assertive conduct], is called hearsay when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it." 1 Stansbury, North Carolina Evidence (Brandis Rev.) § 138 at 458. Such is not the case here. While the mother's conduct may raise implications of family responsibility, at no point do the State's witnesses testify to that conclusion. "The inherent vice of hearsay testimony consists in the fact that it derives its value not from the credibility of the witness himself, but depends upon the veracity and credibility of some other person from whom the witness got his information." State v. Lassiter, 191 N.C. 210, 212, 131 S.E. 577, 579 (1926). The prosecutrix and her mother testified to actions in their living room. Defendant's mother's credibility was not at issue.

Defendant argues further that admitting evidence about the check where the check itself was not produced was a violation of the best evidence rule. "The best evidence rule applies only where the contents or terms of a document are in question." 2 Stansbury, North Carolina Evidence (Brandis Rev.) § 191 at 103. The terms of the check were not the issue in this case; the probative value of the testimony did not turn upon the contents of the check. There was, therefore, no error in admitting this evidence.

Defendant also argues that his motion for nonsuit should have been allowed. He does not argue that the evidence was insufficient on the question of paternity. Instead, he says that there was no evidence of willful refusal to support after a demand had been made upon him for support. Even if there is merit to that argument, it is not appropriate on this appeal. The jury has found him not guilty, and the State could not have appealed from that verdict.

Defendant, in a trial in which we find no error, has appealed from a finding against him on the issue of paternity. This is his right by statute. G.S. 49-7. The determination of paternity will stand. G.S. 49-2 creates a continuing offense. Upon a subsequent prosecution for willful neglect or refusal to support the child, defendant will not be entitled to have the question of paternity relitigated. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

No error.

BRITT and PARKER, JJ., concur.