State v. . Kluttz

Stacy, O. J., after stating tbe case: Tbe wife of tbe defendant Kluttz was not competent to give evidence against ber busband, in a prosecution like tbe present, C. S., 1802, and it was error as to bim to permit ber to do so. S. v. Ashwell, 193 N. C., 399, 137 S. E., 174; S. v. Reid, 178 N. C., 745, 101 S. E., 104; S. v. Raby, 121 N. C., 682, 28 S. E., 490; S. v. Harbison, 94 N. C., 885. See, also, S. v. Spivey, 151 N. C., 678, 65 S. E., 995, and S. v. Cox, 150 N. C., 846, 64 S. E., 199. It was also error, wbicb entitles tbe defendant Rorie to a new trial, to permit tbe witness Scott to testify tbat Mangum said Rorie said be set tbe bouse on fire. This was hearsay and did not corroborate Mangum wbo testified at tbe trial. Evidence is termed hearsay when its probative force depends in whole or in part upon tbe competency and credibility of some person other than tbe witness from whom tbe information is sought; and such evidence, with certain recognized exceptions not presently applicable, is uniformly held to be incompetent, tbe declarant not having spoken under tbe sanction of an oath and not having submitted to cross-examination. S. v. Lassiter, 191 N. C., 210, 131 S. E., 577; S. v. Collins, 189 N. C., 15, 126 S. E., 98; S. v. Setzer, 198 N. C., 663, 153 S. E., 118; S. v. Simmons, 198 N. C., 599, 152 S. E., 774; S. v. Springs, 184 N. C., 768, 114 S. E., 851; S. v. Church, 192 N. C., 658, 135 S. E., 769; S. v. Lane, 166 N. C., 333, 81 S. E., 620; Young v. Stewart, 191 N. C., 297, 131 S. E., 735; Chandler v. Jones, 173 N. C., 427, 92 S. E., 145; King v. Bynum, 137 N. C., 491, 49 S. E., 955; Smith v. Moore, 149 N. C., 185, 62 S. E., 892. Hearsay evidence is incompetent to establish any specific fact, wbicb, in its nature, is susceptible of being proved by witnesses wbo speak from their own knowledge. S. v. Haynes, 71 N. C., 79. It is a general principle in tbe law of evidence tbat tbe gravamen of an indictment, *729 or complaint, sought to be shown against a party, ought to be proved in his presence by witnesses duly sworn and qualified to tell the truth. Satterwhite v. Hicks, 44 N. C., 105. Animadverting on the subject in Mima Queen & Child v. Hepburn, 11 U. S., 290, Chief Justice Marshall, delivering the opinion of the Court, said: “It was very justly observed by a great judge that ‘all questions upon the rules of evidence are of vast importance to all orders and degrees of men: our lives, our liberty, and our property are all concerned in the support of these rules, which have been matured by the wisdom of ages, and are now revered from their antiquity and the good sense in which they are founded.’ “One of these rules is, that ‘hearsay’ evidence is in its own nature inadmissible. That this species of testimony supposes some better testimony which might be adduced in the particular case, is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover, combine to support the rule that hearsay evidence is totally inadmissible. “To this rule there are some exceptions which are said to be as old as the rule itself. These are cases of pedigree, of prescription of custom, and in some cases of bounda/ry. There are also matters of general and public history- which may be received without that full proof which is necessary for the establishment of a private fact.” This case affords a striking illustration of the wisdom of the rule which excludes hearsay. Mangum as a witness for the State did not quote Eorie as saying he set the house on fire, but Scott testifies this is what Mangum told him Eorie said, though the written memorandum made at the time omits any reference to this quotation. Evidently another case of “The Three Black Crows.” (John Byron.) The general rule is, that statements alleged to have been made by a witness, which neither corroborate nor impeach him and about which he does not testify while on the stand, are inadmissible as hearsay. Bradley v. R. R., 126 N. C., 735, 36 S. E., 181; Hardister v. Richardson, 169 N. C., 186, 85 S. E., 304; Nowell v. Basnight, 185 N. C., 142, 116 S. E., 87. Both defendants are entitled to a new trial. It is so ordered. New trial. ScheNCk, J., took no part in the consideration or decision of this case.