State v. . Bagley

Winborne, J. Defendant presents for decision, first, exception to the ruling of the court in denying his motions for judgment as in case of non-suit, and second, numerous exceptions to the admission of evidence. As to the first: While there is conflict of testimony, as between that offered by the State, and that offered by the defendant, we are of opinion and hold that the evidence offered on the trial below, taken in the light most favorable to the State, as we must do in passing upon such motions, is sufficient to make out a case for consideration by the jury. The evidence favorable to the State places defendant on the scene at the time of the shooting, and there is evidence from which the jury may reasonably infer that defendant did the shooting. But as to the second, we are of opinion that exceptions 7, 8, 9 and 10 considered together show error prejudicial to defendant. The admission of the evidence as to previous contradictory declarations of the State’s witness Eldria Cheatham is erroneous in two aspects : (1) It violates the well settled rule of evidence that a party cannot discredit his own witness. S. v. Melvin. 194 N. C. 394, 139 S. E. 762; S. v. Freeman, 213 N. C. 378, 196 S. E. 308, and cases cited. See also Section 40 of Stansbury on North Carolina Evidence. (2) It exceeds the limits of the rule that, in the event the credibility of a witness is impaired, his previous similar *727 statements are admissible. For, as stated in S. v. Melvin, supra, Brogden, Jwriting for the Court: “The rule has never been expanded far enough to permit the introduction of previous contradictory statements, because in the very nature of things this would weaken credibility rather than strengthen or confirm it.” See also S. v. Lassiter, 191 N. C. 210, 131 S. E. 577, where the Court said: “In no aspect of the law of evidence can contradictory evidence be used as corroborating, strengthening or confirming evidence.” The case of S. v. Melvin, supra, is very similar to the one in hand. Here, as in the Melvin case, the narrative of officer Bigsbee, in the particulars quoted hereinabove, is not a narrative “of previous similar declarations” made by Eldria Cheatham, but rather of previous dissimilar and contradictory statements made by Eldria Cheatham as tending to show how the killing occurred. “This is not permissible under the rules of law applicable to the trial of criminal cases.” S. v. Melvin, supra. Moreover, it may be noted that in the Melvin case, the trial judge stated to the jury that the evidence of Dr. Brewer (C. W. Rigsbee in the present case) was offered “only for the purpose of corroborating Mary Bradley” (Eldria Cheatham in the present case). And, continuing, “You will only consider that part of his evidence which you find tends to corroborate Mary Bradley, if you find any of it does, and you are not to consider any part of it that does not corroborate her.” Then this Court, after noting certain variations, said : “This testimony of Dr. Brewer, therefore, contradicts the testimony of Mary Bradley, another State’s witness, in material particulars, which, if believed, totally destroyed the theory of the defendant that the cutting was accidentally done.” Error was found, and a new trial granted. See also S. v. Jackson, 228 N. C. 656, 46 S. E. (2) 858, where, referring to the charge, this Court stated, “While no particular harm seems to have resulted from the preliminary statement in the instant case, it is not to be approved as a general practice. The trial court ought not to submit his charge to the jury for elimination of inconsistencies.” In like manner the trial judge should not submit to the jury the task of eliminating patent contradictory declarations from those tending to corroborate testimony given on the stand. The same principle is applicable to the testimony of the same officer as to previous statements made to him by the State’s witness Pansy Cheat-ham to which exceptions 11, 12 and 13 relate. As the case must go back for retrial, other exceptions need not be considered. TIence, for error pointed out, let there be a New trial.