State v. . Goff

Avery, J. : This was an indictment for an affray in which the theory of the State was that the defendants John Goff and the two Kearneys were the guilty combatants on the one side, and the defendant Gerganus who was acquitted by the jury was a willing participant on *761 the other side. After offering two witnesses on behalf of the State, the solicitor, following the usual practice, rested and gave the parties the opportunity each to. offer testimony criminating his antagonist or antagonists in order to exculpate himself. In such a contest the witnesses for the one side stand, as to the parties cn the other, in the relation of prosecuting witnesses and defendants, and hence it is the universal practice to compel them to submit to cross-examination with all of the rights which are incident thereto when they are examined in chief on behalf of the State. The appellants had introduced their testimony and when Gerganus was upon the stand, as the witness in his own behalf, the other defendants had the same right to impeach him on cross-examination as though he had been a witness on behalf of the State instead of a co-defendant. The State might have impeached him (State v. Efler, 85 N. C., 585) and the same privilege should have been allowed to his co-defendants. If the questions propounded by the counsel for defendants tended to elicit testimony showing the temper and bad blood of Gerganus towards his co-defendants and was offered, not alone as substantive testimony against him as a defendant, but also in order to impeach him as a witness, it was unquestionably competent to examine the witnessses, whose names had been mentioned in connection with the time and place of making the declarations, to contradict his denial that he made them. State v. Patterson, 2 Ired., 346; State v. Sam, 8 Jones, 150. The history of the ruling excepted to and assigned as error, as it appears in the statement of the case, is as follows: “During the defendant Gerganus’ cross examination he was asked by counsel for defendants Goff and the Kearneys this question, namely, ‘On the day of the night of that difficulty, did you not tell Merrimon Ginn at your house that if Goff and his friends came to your *762 bouse that night you would kill a man V The witness answered that he did not. He was then asked on behalf of the same defendants this question, namely, ‘On the same day and at the same place did you not tell Thomas Kearny that you were expecting John Goff at your house that night and if he came you would kill him or hurt him badly V This was also answered in the negative. On the conclusion of the testimony on behalf of Gerganus no further evidence being offered by the State the defendants John Goff, James Kearney and Prank Kearney called in Merrimon Ginn and Thomas Kearney, the persons referred to in the cross-examination of defendant Gerganus, and both of whom had been duly sworn. His Honor inquired for what purpose were those witnesses called in % The counsel for Goff and the Kearneys informed the court that he proposed by these witnesses to contradict Gerganus as to the threats referred to and to prove the declarations of Gerganus as set out in the questions specified, and this was to show the animus of that defendant towards John Goff and James and Frank Kearney as affecting his testimony, as well as to account for his conduct on the night of the difficulty. Merrimon Ginn was then first offered with that view. The court refused to permit the witness to testify on the point named, and stated that it would not allow the proposed testimony from either of the witnesses as the matter was collateral. Defendants John Goff and James and Frank Kearney excepted to this ruling. If the testimony was competent for either of the purposes indicated by counsel for the appellants, it was error to exclude it. It was clearly not competent to explain the conduct of Gerganus by connecting it with proof of motive. The guilt or innocence of Gerganus depended entirely upon the facts and circumstances connected immediately with the transaction. State v. Norton, 82 N. C., *763 628; State v. Harrell, 107 N. C., 944; State v. Skidmore, 87 N. C., 509. If tbe court had admitted the testimony to contradict Gerganus it would have become necessary to caution the jury to consider it only for the purpose of. impeaching. But it is not the less error to exclude testimony offered for a purpose for which it is competent, because coupled with that order is a proposition which is not tenable to admit it on another ground. Such an error is not cured even by allowing other witnesses to testify to the very same facts which were excluded on a cross examination but, said PeaesoN, O. J., in State v. Murry, 63 N. C., 31, “can only be remedied by venire de novo.” It is true that Gerganus testified to facts which if believed would have corroborated the defendant Gerganus, and tended to show that John Goff and .the two Kearneys fought willingly. But the jury, if they believed the other-witness for the State, Joseph Goff, might have inferred that the other defendants did not fight willingly-and used no more force than was necessary to disarm the defendant Gerganus and provide for their own safety. They all testified to substantially the same state of facts as Joseph Goff. As the testimony of Henry Gerganus and his kinsman would, it seems, if believed, have left no doubt as to the guilt of the other three, it was all important in view of such a conflict that the three appellants should have the benefit of any competent impeaching testimony. Hon eonstat, if it had been admitted, but that Gerganus might have been found guilty, and they might have been acquitted. It may be that the testimony of Henry Ger-ganus going to the jury as it did, unimpeached and corroborated by that of Henry, led them to give credit to him instead of to Joseph Goff and the three appellants. Whatever would have been the result, if no erroneous ruling had been made, or whatever may be the conse *764 quence hereafter, it seems clear that the appellants have been deprived of testimony, of which we know not the weight or worth, to the benefit of which they are justly entitled. The eases of State v. Ballard, 97 N. C., 443, and Clark v. Clark, 65 N. C., 655, are not in conflict with the principles we have stated as governing this case. There was no proposition in the case at bar to go into particulars of other transactions or difficulties and set them up as tending to show bias. In such case the danger of raising numberless issues to distract the minds of the jury would be obvious. But the proposition was to prove a threat of bodily harm to be carried into execution on that night and at his own house where the difficulty occurred. While this was not competent as evidence of motive, it was admissible to show temper. We conclude that the appellants are entitled to a venire de novo.