State v. Godwin

DenNY, J..

The defendants excepted to and assigned as error, the admission of certain evidence, purely collateral in character and which they contend was prejudicial to them. George Elliott, a witness fpr the State, who admitted he had had trouble with the defendant,. Miss Ada Godwin, was permitted to testify that about a month before the commission of the alleged crime, for which the defendants were on trial, that he had started to Miss Ada Godwin’s house to see her relative to a fire and that he met her at Dale’s Filling Station and said to her: “I want to see you, I have had a lot of trouble about cattle. The other two fires are a thing' of the past, but I have about reached my limit. The one last night ... I can’t take it any longer. I would like to ask you if you would be willing, leaving me out, to pay the tenants of mine, the share-croppers, a part of their corn and for their hay, so they will have something to feed their stock on.” Lie further testified her reply was “G-d-n the fire. I am not interested in the damn fire. . So far as I am concerned it was over the Cape Fear River.” The witness was also permitted to testify to the use of vile and profane language by Ada Godwin in discussing a debt owed by one of her tenants for a seed loan, which tenant was planning to move on Elliott’s land, without paying the loan.

This evidence tended to discredit and impeach this defendant about a collateral matter and to create an unfavorable impression of the defendant in the minds of the jurors which was manifestly prejudicial.

S. v. Lee, 211 N. 0., 326, 190 S. E., 234 . It is true, as the State contends, she went upon the stand and testified in her own behalf, but she denied that any such conversation took place, and by so doing she did not make the evidence competent nor waive the objection to its admission. The well established rule that when incompetent evidence is admitted over objection, but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost, but, as stated by Brogden, J., in Shelton v. R. R., 193 N. C., 670 , 139 S. E., 232 : “The rule does not mean that the adverse party may not, on cross-examination, explain the evidence, or destroy *848 its probative value, or even contradict it with other evidence, upon peril of losing the benefit of bis exception.”

Tbe testimony of the above witness does not come within the rule that proof of the commission of other like offenses may be admitted to show the scienter, intent and motive when the crimes are so connected or associated that the evidence will throw light on the question under consideration. S . v. Smith, 204 N. C., 638 , 169 S. E., 230 ;

S. v. Beam, 179 N. C., 768 , 103 S. E., 370 ;

S. v. Stancill, 178 N. C., 683 , 100 S. E., 241 ;

S. v. Lee, supra; Gray v. Cartwright, 174 N. C., 49 , 93 S. E., 432 ;

S. v. Walton, 114 N. C., 783 , 18 S. E., 945 ;

S. v. Murphy, 84 N. C., 742 . The fact that the trial judge instructed the jury to consider this evidence as against Ada Godwin only, did not limit the prejudicial effect of the evidence to her alone, since the testimony of the State as a whole tended to show that she was the instigator of the conspiracy and personally directed the assault on the Bullards. We think the exception well taken and that the defendants are entitled to a new trial.

There are other exceptions of merit presented on the record, but since there must be a new trial, we deem it unnecessary to discuss them.

New trial.