State v. Byrd

VAUGHN, Judge.

Error was committed when the State was allowed to offer evidence that defendant’s wife, who did not testify, had pled guilty to the breaking and entering and thus admitted her participation in a crime which, according to the State’s evidence, was committed by defendant and his wife.

With certain exceptions to the rule at common law which are set out in G.S. 8-57 and not material here, one spouse is neither competent nor compellable to give evidence against the other in criminal proceedings. Defendant’s evidence was that he and his wife were together at a club during the time that two of the State’s witnesses testified defendant and his wife were elsewhere, together and in possession of the stolen television set. The wife’s admission by plea did not, of course, expressly incriminate defendant, but it certainly was evidence against him for it went to the heart of his defense.

There is another reason why the evidence should not have been admitted. Defendant and his wife were alleged to be co-participants in the crime. Evidence of a coparticipant’s earlier plea of guilty may not be used as evidence against another where the coparticipant does not testify at the trial of the other. Among other things, it deprives the defendant being tried of his right of confrontation and cross-examination.

The court’s instruction that the jury should consider the evidence for the sole purpose of impeaching the credibility of defendant’s witness, McClinton, and for no other purpose was inconsequential. The material challenged fact was whether defendant and his wife were at the club, as McClinton swore, or elsewhere and in possession of the stolen property, as the wife’s plea of guilty tacitly admitted. The contradictory evidence from the wife was just as much substantive proof as McClinton’s testimony which was under attack. If admissible at all, and it was not, the evidence would have been competent and material as substantive evidence. The evidence tended to impeach only in the sense that all evidence which tends to show a material fact to be other than as testified to by a witness impeaches that witness.

We do not ignore the substantial amount of persuasive evidence of defendant’s guilt, properly admitted. We do not necessarily suggest that the jury placed any credence in defendant’s evidence that he and his wife were elsewhere when two of the State’s witnesses placed them in possession of the stolen property. We cannot, however, in the light of the recent opinion of the North Carolina Supreme Court in State v. Castor, No. 68, filed 15 May 1974, say that there is no reasonable possibility that the evidence complained of contributed to the conviction.

For the reasons stated there must be a new trial.

New trial.

Judges Campbell and Morris concur.