State v. Hicks

Stacy, C. J., after stating the case: Conceding that the action of the trial court in excluding the testimony of S. M. Powell is sustainable on the ground that the witness had failed to qualify himself by first saying that he knew the general reputation and character of Roy Pearson (S. v. Mills, 184 N. C., 694 , 114 S. E., 314 ), though this may be doubted on a liberal interpretation of the record (S. v. Fleming, 194 N. C., 42 , 138 S. E., 342 ), still it would seem that a new trial must be awarded for error in the exclusion of the testimony of Amos Mims. It would be “sticking in the bark” to say that he did not qualify himself as an impeaching character witness.

S. v. Steen, 185 N. C., 768 , 117 S. E., 793 .

The rule is, that when an impeaching or sustaining character witness is called, he should first be asked whether he knows the general reputation and character of the witness or party about which he proposes to testify. This is a preliminary qualifying question which should be answered yes or no. If the witness answer it in the negative, he should be stood aside without further examination. If he reply in the affirmative, thus qualifying himself to speak on the subject of general reputa *541 tion and character, counsel may then ask him to state what it is. This he may do categorically, i. e., simply saying that it is good or bad, without more, or he may, of his own volition, but without suggestion from counsel offering the witness, amplify or qualify his testimony, by adding that it is good for certain virtues or bad for certain vices.

S. v. Colson, 193 N. C., 236 , 136 S. E., 730 ;

S. v. Nance, 195 N. C., 47 , 141 S. E., 468 . These requirements were met by the witness Mims, if not by the witness Powell.

But it is urged the defendant’s guilt is so overwhelmingly established by the record, that an inadvertence in excluding the testimony of a character -witness ought not to be regarded as capitally important. There are two answers to this position. In the first place, it is not conceded that the guilt of the defendant is conclusively established by the record. The witnesses for the defendant, offered to prove his alibi, outnumber those of the State, though it is conceded that the question of numerical weight or balance of witnesses is neither determinative nor significant. Suffice it to say, the evidence is in conflict. In the second place, the credibility of witnesses is peculiarly a matter for the jury and not for the court.

S. v. Beal, 199 N. C., 278 , 154 S. E., 604 .

The error is just one of those mishaps which, now and then, befalls the most circumspect in the trial of causes on the circuit.

S. v. Griggs, 197 N. C., 352 , 148 S. E., 547 . But the defendant has appealed, and he is entitled to a ruling on his exception.

S. v. Setzer, 198 N. C., 663 , 153 S. E., 118 .

New trial.

ClakicsoN, J., dissents.