State v. Bridgers , 233 N.C. 577 ( 1951 )

64 S.E.2d 867 (1951) 233 N.C. 577

STATE
v.
BRIDGERS.

No. 434.

Supreme Court of North Carolina.

May 9, 1951.

Harry McMullan, Atty. Gen. and Ralph Moody, Asst. Atty. Gen., for the State.

Brassfield & Maupin, Raleigh, and G. Butler Thompson, Lumberton, for defendant, appellant.

JOHNSON, Justice.

The defendant's chief assignment of error relates to the charge of the court bearing on the character evidence offered below by both sides. The State offered testimony as to the good character of its witnesses, Frances and Mary Ellen Hall. The defendant, after taking the stand as a witness in his own behalf, offered five witnesses who testified to his good character. The trial court's single reference to the character evidence is embodied in the following instruction, to which the defendant excepted: "I charge you further, gentlemen of the jury, that character testimony is direct testimony and you are to take the character testimony into consideration in finding the facts in this case. Character testimony was offered by the two Hall girls as well as character testimony of the defendant in this case was offered by the defendant."

By this instruction the jury, we think, was inadvertently led to believe that the character evidence offered both by the State and by the defendant should be weighed and considered alike, whereas the evidence of the defendant's good character is controlled by a rule different from that applicable to the evidence regarding the character of the two State's witnesses. The testimony as to the character of the witnesses for the State was not substantive evidence; it was relevant and material only as bearing upon the credibility of their testimony. State v. Jeffreys, 192 N.C. 318, 135 S.E. 32; and In re McKay's Will, 183 N.C. 226, 111 S.E. 5.

On the other hand, it is observed that the defendant went upon the witness stand. Then, when he offered evidence of his good character, he thereby placed his character directly in issue. Consequently, he was entitled to have the jury consider the evidence of his good character in a dual aspect: (1) as bearing upon his credibility as a witness in his own behalf,—his veracity and worthiness of belief; and (2) as substantive evidence, bearing directly upon the issue of his guilt or innocence of the crime charged, upon the theory that a man of good character, who has pursued an honest and upright course of conduct, is unlikely to deviate therefrom and do a dishonest act inconsistent with the record of his past life. State v. Colson, 193 N.C. 236, 136 S.E. 730; State v. Nance, 195 N.C. 47, 141 S.E. 468. See also Stansbury, North Carolina Evidence, Sec. 108, pp. 204 and 205.

True, our decisions hold that, as a general rule, prejudicial error may not be predicated upon failure of the trial judge to charge the jury that evidence of good character of the defendant should be considered as substantive evidence, in the absence of a request for such instruction, State v. Scoggins, 225 N.C. 71, 33 S.E.2d 473, the reason being that such evidence, when related to the charge of the court, is ordinarily treated as a subordinate phase of the case. State v. Sims, 213 N.C. 590, at page 594, 197 S.E. 176. But be that as it may, when the trial court thinks proper to instruct upon character evidence, it then becomes his duty, without special request, to expound and explain correctly the law applicable to its different phases. See State v. Austin, 79 N.C. 624 (second headnote), and Jarrett v. High Point Trunk & Bag Co., 144 N.C. 299, at page 301, 56 S.E. 937. And where, as in the instant case, the defendant has placed his character in issue by offering testimony as to his good character, it would seem to be prejudicial error for the court to give a limited charge to the jury, directing attention to the fact that the State as well as the defendant has offered character evidence, with instruction that the jury shall consider the evidence of both sides merely as direct evidence, without going further and explaining to the jury that they should consider in its dual aspect the defendant's evidence of good character. State v. Davis, 231 N.C. 664, 58 S.E.2d 355; State v. Moore, 185 N.C. 637, 116 S.E. 161.

Error is also assigned in a portion of the charge relating to the defendant's evidence of alibi. He offered evidence tending to show that at the time charged he was in bed at his rooming house some eight blocks distant from the scene of the alleged crime. On this phase of the case, the trial judge charged the jury in part as follows (with the defendant's exception relating only to the last sentence, shown in parenthesis): "the defendant in this case relies in part on what is known as an `alibi'; `alibi' means `elsewhere'; it is not, properly speaking, a defense within any accurate meaning of the word `defense' but is a mere fact which may be used to call in question the identity of the person charged, or the entire basis of the prosecution; the burden of proving an alibi, however, does not rest upon the defendant; the burden of proof never rests upon the accused to show his innocence or to disprove the facts necessary to establish the crime with which he is charged. The defendant's presence and his participation in the crime charged are affirmative, material facts which the proscution, that is, the State of North Carolina, must show beyond a reasonable doubt to sustain a conviction. For the defendant to say he was not there is not an affirmative proposition; it is a denial of the existence of a material fact in the case. (It is only necessary for the defendant in his defense to produce such an amount of testimony, whether by evidence tending to show an alibi or otherwise, as to produce in the minds of the jury a reasonable doubt of his guilt.)"

The foregoing portion of the charge to which exception is taken by the defendant, if lifted out of context and considered separate and apart from the rest of the charge, would seem to be susceptible, as suggested by the defendant, of being interpreted as placing on the defendant the burden of producing evidence sufficient to raise a reasonable doubt as to his guilt, contrary to our decisions holding that an accused person may not be burdened with establishing his innocence. State v. Josey, 64 N.C. 56; State v. Reitz, 83 N.C. 634.

However, it is observed that in the instant case the charge as to alibi, including the challenged portion thereof, appears to follow almost verbatim the instructions which were reviewed by this Court in State v. Jaynes, 78 N.C. 504, at page 506 and State v. Sheffield, 206 N.C. 374 at pages 384 and 385, 174 S.E. 105, where under application of the doctrine of contextual construction the charges were upheld, as were similar inexact charges in State v. Starnes, 94 N.C. 973; State v. Freeman, 100 N.C. 429, 5 S.E. 921; and State v. Rochelle, 156 N.C. 641, 72 S.E. 481.

Therefore, in the instant case, upon a contextual interpretation of the charge as a whole, the challenged portion may not be held prejudicial. State v. Jaynes, supra, 78 N.C. 504 and State v. Sheffield, supra, 206 N.C. 374, 174 S.E. 105.

Nevertheless, we deem it appropriate to suggest that the form of the charge as given in the instant case may be brought more nearly into accord with the tenor of our better reasoned decisions by substituting for the challenged portion of the instruction a statement in substance as follows: "Therefore, the defendant's evidence of alibi is to be considered by you like any other evidence tending to refute or disprove the evidence of the State. And if upon consideration of all the evidence in the case, including the defendant's evidence in respect to alibi, there arises in your minds a reasonable doubt as to the defendant's guilt, he should be acquitted."

This is also in conformity with the weight of authority in other jurisdictions, sustaining the rule that by offering evidence tending to prove an alibi, an accused person is not thereby saddled with an independent burden of proving the alibi as an affirmative defense. The proper rule to be followed by the jury in weighing and considering evidence of an alibi is concisely stated in the annotation appearing in 29 A.L.R. p. 1127: "The offering of evidence to prove an alibi should not be regarded as in any sense an attempt to prove an independent, affirmative defense. The prosecution must prove the defendant's presence (in those cases where presence is essential to the commission of the crime charged) beyond a reasonable doubt, and the defendant may by any legitimate evidence, rebut or disprove this essential factor in the case for the prosecution. One means of disproving presence at the scene of the alleged crime at the time of its commission is obviously by proof of presence elsewhere. And this is the sole purpose of evidence to prove an alibi,—to negative this essential factor in the State's case, the same as any other evidence tending to rebut or disprove the commission of a crime by the defendant. And it is apparently an erroneous view of the matter to regard an alibi as an independent defense at all, and to introduce the question of burden of proof into that issue." See also Annotations: 67 A.L.R. 138, and 124 A.L.R. 471.

As the exceptions presented by the other exceptive assignments of error may not arise again, we refrain from discussing them.

New trial.