State v. . Jessup

WaxKER, J., after stating the facts: Notwithstanding the exclusion of the evidence as to intent, the court charged the jury, as to one of the contentions of the defendant, being that the agreement had been made with Dleykan and that thé Anderson car was taken by Maner through error as to its identity and ownership, because of its similarity to the Dleykan car, explaining to the jury that, as defendants therefore contended, there was no felonious or dishonest intent in taking the Anderson car, but, by his previous ruling, he had left the defendant Jessup without the evidence to support this contention, and also without the evidence to show that he had no knowledge that the Anderson car had been stolen. If we concede that 'there was evidence for the jury to the contrary of Jessup’s contention, that is, such as would tend to show his guilty knowledge and felonious intent, it was error to exclude the evidence and thus disarm him so that he could not defend himself against the charge of the State. It was manifestly competent to show by the defendant himself, if testifying in his own behalf, not only the absence of guilty knowledge that the ear had been stolen, if it had been, but also the absence of Maner’s intent to steal it. This Court has expressly ruled upon this *550 question of guilty knowledge, guilty motive or intent, in Phifer v. Erwin, 100 N. C., 59, at p. 65, where Chief Justice Smith said, citing and quoting from S. v. King, 86 N. C., 603: “The test of the admissibility of the evidence of motive or intent is the materiality of the motive or intent in giving character to the act, and when they must, as separate elements, coexist to constitute guilt or produce a legal result. When, as distinct facts, each must be alleged and proved, the inference to be deduced may be met and repelled by the direct testimony of the party as to their being entertained by him.” 1 Wharton on Evidence, sec. 482. This is direct instead of circumstantial evidence as to guilty, intent or knowledge or motive. In the Phifer case the plaintiff, on his own behalf, was allowed, after objection, to state that he knew nothing of any understanding between the parties to the mortgage that the mortgagor was to remain in possession when the goods were delivered to him, nor of any purpose on the part of either to defraud the mortgagor’s creditors, and this upon the question of plaintiff’s fraudulent knowledge or intent. This was held to be admissible. There are several assignments of error as to other rulings, but they may not be presented again, and we will not consider them. There was error in the rulings, as indicated above, because of which the defendant Jessup is entitled to another jury. New trial.