State v. . Davis , 78 N.C. 433 ( 1878 )

A party may impeach the credibility of his adversary's witness, and one of the several modes of doing so is by showing that the witness at some previous time has made statements inconsistent with his evidence on the trial. And when two witnesses testify contradictory before the jury, in regard to a fact relevant to the issue, it becomes highly important for the jury to know which one is more entitled to credit. This information is to be obtained as best it can, and in various ways, as from the proof of character, cross-examination, demeanor and bearing of the witness, proof of other facts and surrounding circumstances, etc., and it is quite certain that a knowledge that one of the witnesses had made an inconsistent statement at another time, touching the same matter, unless explained, would have its effect on the minds of the jurors in their search for a correct conclusion on the main issue.

The defendant called Jane Ross, who testified that a certain pipe stem, exhibited on the trial, was not the pipe stem of the defendant, and that she had previously said at her house that it looked like his, but that she soon thereafter satisfied herself that it was not. The solicitor was then allowed to contradict her, by showing that she made a statement at her house at the time alluded to, totally inconsistent with her evidence on the trial. Assuming, for the purpose of this case, that (436) a proper foundation was laid for the admission of the impeaching evidence, and further, that her statements were contradictory, the question arises, What is the proper office of the impeaching evidence and for what purpose should the jury consider it? The defendant's counsel prayed the court to charge the jury "that it could be considered by them only for the purpose of impeaching the testimony of Jane Ross, and not as substantive evidence of the defendant's guilt." His Honor, "intending to assent to the prayer," told the jury in substance that if they believed from the evidence that the two statements were inconsistent, then it would be for them to say whether her first statement or her evidence at the trial was the truth. This plain proposition was true, but it was no response to the prayer of the defendant. The instruction prayed was proper (S. v.Brown, 76 N.C. 222), and the failure to give it permitted the jury to consider the fact of contradiction as substantive evidence of the defendant's guilt, and not simply as evidence affecting the credibility of the witness Jane Ross. The court should have guided the minds of the jury in the application of the impeaching evidence. This conclusion makes it unnecessary to consider other exceptions.

PER CURIAM. Venire de novo.

Cited: Lord v. Beard, 79 N.C. 13.

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