State v. . Whitfield

MereiMON, J. The defendant having challenged peremptorily as many jurors as the statute applicable in such cases allowed him to do, challenged two other jurors for cause, and assigned as ground of challenge that each of them “ had served on the jury in that court within the past two years,” and were disqualified under the proviso of The Code, §1733, which provides “that it shall be a disqualification and ground of challenge to any tales juror that such juror has acted in the same court as grand, petit or tales juror within two years next preceding such term of the court.”" We are of opinion that the Court properly disallowed the ground of challenge assigned. The two jurors had been drawn upon the special venire the day before they were so challenged, as required by the statute (acts 1883, ch. 300, sec. 1,) applicable to the Criminal Court of the city of Wilmington. They were not tales jurors, but of a special venire, drawn and summoned before they were required to serve. They were different in their type from talesmen, and the statute cited makes a distinction between the two classes. They did not come within the terms of the proviso quoted above, nor within the mischief to be remedied by it. But if they had been talesmen, this objection Avas not good, because it did not appear that they had acted as jurors within two years. To render them disqualified they must have acted within that time. State v. Thorne, 81 N. C., 555; State v. Brittain, 89 N. C., 481. *834 The witness Terry, a policeman, had sworn very positively to facts and circumstances that went strongly to prove the guilt of the defendant. The defendant, and two other witnesses in his behalf, swore to facts tending to prove that what Terry had sworn was not true, and the obvious purpose and effect of this testimony, if believed, was to contradict and discredit him. The purpose was to impeach his testimony. It was, therefore, competent for the State to corroborate 'the prosecuting witness by showing that he had given the person whose goods were stolen the same description of the defendant before he arrested him, as that testified to by him on the trial; and, for the like purpose, it was competent to show that this witness, as he testified he had done, had pointed out the defendant on the sidewalk to the same person to whom he had given the description, as the person whom he had seen in the store, and that he then arrested him. That a witness impeached may be thus corroborated is settled in this State, and such corroborating evidence is not confined to cases where the adverse party produces evidence of statements made by the witness inoonsistent with what he testified to on the trial. In State v. Twitty, 2 Hawks, 449, Chief Justice Taylor having reference to this subject said : “ It seems to me not to be a just construction of the case of Luttrell v. Reynell, 1 Mod. Rep., 284, to consider the confirmatory evidence as offered in chief; for suspicion may be thrown on the evidence of a witness, from the nature of his evidence, from the situation of the witness, or from imputations directed against him in the cross-examination, which may be not less effectual in discrediting him than direct evidence brought to impeach his testimony, and equally call upon the party introducing him for confirmatory evidence.” This authority was after-wards recognized and approved in State v. George, 8 Ired., 324; State v. Dove, 10 Ired., 469; March v. Harrell, 1 Jones, 329; Jones v. Jones, 80 N. C., 246 ; State v. Mitchell, 89 N. C., 521. The purpose of such evidence is not to prove the principal facts to be established, it is intended to prop and strengthen a witness, testifying in respect to such facts, in some way impeached, by showing his consistency in the statements he makes, or the *835 account be gives of the matter about which he testifies, when, and when not under oath. It tends to help his credibility, just as does evidence of his good character, or other evidence competent for such purpose. The witness impeached, as well as others, is competent to testify as to such consistency. He, like other witnesses, may testify as to any pertinent, competent facts within his knowledge. We cannot see why he may not. In such case he might have promptings to prove his consistency, that others might not have, and thus be more inclined not to testify truly, but this goes to the weight of his testimony and not to its competency. The question whether the impeached witness was competent to testify as to his consistent statements previously made in respect to -the matter about which he testified on the trial, was decided in the affirmative in State v. George, supra. In that case, Battle, Judge, said: “The subordinate question is, whether such confirmatory testimony can be given by the impeached witness himself; that is, can he testify to his former declaration, consistent with his testimony given on the trial. The majority of us, —Nash, Judge, dissentiente — hold that he can, and we so hold because we are unable to discover any principle by which the testimony can be excluded. We have all just agreed that the question is a proper one to be asked of some witness, and why may it not be answered by any witness who is not forbidden to answer it on any one or more of the grounds of objection to the competency of witnesses.” Such exidence is not of a high type, but, such as it is, it is received or rejected like other evidence. The testimony of the witness Hardwick, the admission of which was made the ground of an exception, was not material, and was of slight or- no importance, but any objection to it was obviated when the defendant undertook, on the trial, to establish the defence suggested before the committing magistrate. It does not appear that it prejudiced him in any respect. As the credibility of the prosecuting witness was put in question, it is manifest that the evidence as to his good character was competent and properly admitted. *836 There is no error in the judgment of the Criminal Court. Let this opinion be certified to that Court to the end that it may take further action according to law. It is so ordered. No Error. Affirmed.