State v. Rowell , 244 N.C. 280 ( 1956 )

93 S.E.2d 201 (1956) 244 N.C. 280

STATE
v.
Bill ROWELL.

No. 725.

Supreme Court of North Carolina.

June 6, 1956.

Atty. Gen. Wm. B. Rodman, Jr., Asst. Atty. Gen. Claude L. Love, Harvey W. Marcus, Staff Atty., Raleigh, for the State.

Hackett & Weinstein, L. J. Britt & Son, Lumberton, for defendant appellant.

WINBORNE, Justice.

The assignment of error most stressed by appellant on this appeal is based upon Exception No. 1 to the exclusion of the evidence as above set forth. In this connection, "Cross-examination of an opposing witness for the purpose of showing his bias or interest is a substantial legal right, which the trial judge can neither abrogate nor abridge to the prejudice of the cross-examining party." So declared this Court, in opinion by Ervin, J., in State v. Hart, 239 N.C. 709, 80 S.E. 2d 901, 903, 41 A.L.R.2d 1199.

It is also stated in the Hart case that "A party to an action or proceeding, either civil or criminal, may elicit from an opposing witness on cross-examination particular facts having a logical tendency to show that the witness is biased against him or his cause, or that the witness is interested adversely to him in the outcome of the litigation", citing cases, and that "under this rule, a witness for the prosecution in a criminal case may be compelled to disclose on cross-examination that he has brought, or is preparing to bring a civil action for damages against the accused based on the acts involved in the criminal case", citing cases.

The Attorney General for the State admits that if the Hart case cannot be distinguished on the facts, the above exception and the ruling thereon is error. But the Attorney General here contends that the factual situation in the Hart case is distinguishable, from that in the present case. Nevertheless, it is said that "The State admits that: (1) If the estate of W. E. Ivey, Jr., actually goes on trial against the truck driver, Wiley Goins, and (2) if the defendant testifies in the civil action, and (3) if he testifies for the plaintiffs in the civil action, then it is possible that the conviction of the defendant would have some effect upon his credibility as a witness since former conviction can be made the basis of impeachment."

Moreover, it seems that the probability of bias from interest if the witness were suing for recovery of damages in sum of $25,000, on the one hand, and if he were being sued for like amount on the other hand, both arising out of the occurrence for which defendant is charged with crime, presents a difference without a distinction in principle.

And paraphrasing the Hart case, the jurors might well have discounted the testimony of the witness Goins in a material manner had they been informed that he was pecuniarily interested in the conviction of the defendant. This being true, the exclusion of the facts relating to the civil action brought against Goins constituted prejudicial error, for which there must be a

New trial.

JOHNSON, J., took no part in the consideration or decision of this case.