STATE
v.
McCLAIN.
No. 438.
Supreme Court of North Carolina.
April 28, 1954.*365 Harry McMullan, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.
W. Brantley Womble, Raleigh, J. Allen Harrington, and McDermott & Cameron, Sanford, for defendant.
ERVIN, Justice.
The defendant emphasizes the assignment of error based on the admission of the testimony indicating that she committed another distinct crime, to-wit, larceny, several hours after her last assignation with the State's witness Bolling.
The general rule is that in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, indepedent, or separate offense. State v. Fowler, 230 N.C. 470, 53 S.E.2d 853; State v. Choate, 228 N.C. 491, 46 S.E.2d 476; State v. Godwin, 224 N.C. 846, 32 S.E.2d 609; State v. Wilson, 217 N.C. 123, 7 S.E.2d 11; State v. Lee, 211 N.C. 326, 190 S.E. 234; State v. Jordan, 207 N.C. 460, 177 S.E. 333; State v. Smith, 204 N.C. 638, 169 S.E. 230; State v. Beam, 184 N.C. 730, 115 S.E. 176; State v. Beam, 179 N.C. 768, 103 S.E. 370; State v. Barrett, 151 N.C. 665, 65 S.E. 894; State v. McCall, 131 N.C. 798, 42 S.E. 894; State v. Graham, 121 N.C. 623, 28 S.E. 409; State v. Frazier, 118 N.C. 1257, 24 S.E. 520; State v. Lyon, 89 N.C. 568; State v. Shuford, 69 N.C. 486; State v. Vinson, 63 N.C. 335; Stansbury on North Carolina Evidence, § 91. This is true even though the other offense is of the same nature as the crime charged. State v. Jeffries, 117 N.C. 727, 23 S.E. 163; 20 Am.Jur., Evidence, § 309; 22 C.J.S., Criminal Law, § 682.
The general rule rests on these cogent reasons: (1) "Logically, the commission of an independent offense is not proof in itself of the commission of another crime." Shaffner v. Commonwealth, 72 Pa. 60, 13 Am.Rep. 649; People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193. (2) Evidence of the commission by the accused of crimes unconnected with that for *366 which he is being tried, when offered by the State in chief, violates the rule which forbids the State initially to attack the character of the accused, and also the rule that bad character may not be proved by particular acts, and is, therefore, inadmissible for that purpose. State v. Simborski, 120 Conn. 624, 182 A. 221; State v. Barton, 198 Wash. 268, 88 P.2d 385. (3) "Proof that a defendant has been guilty of another crime equally heinous prompts to a ready acceptance of and belief in the prosecution's theory that he is guilty of the crime charged. Its effect is to predispose the mind of the juror to believe the prisoner guilty, and thus effectually to strip him of the presumption of innocence." State v. Gregory, 191 S.C. 212, 4 S.E.2d 1, 4. (4) "Furthermore, it is clear that evidence of other crimes compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the jury from the charge immediately before it. The rule may be said to be an application on the principle that the evidence must be confined to the point in issue in the case on trial." 20 Am.Jur., Evidence, § 309. See, also, in this connection these North Carolina cases: State v. Fowler, 230 N.C. 470, 53 S.E.2d 853; State v. Beam, 184 N.C. 730, 115 S.E. 176; State v. Fowler, 172 N.C. 905, 90 S.E. 408.
The general rule excluding evidence of the commission of other offenses by the accused is subject to certain well recognized exceptions, which are said to be founded on as sound reasons as the rule itself. 22 C.J.S., Criminal Law, § 683. The exceptions are stated in the numbered paragraphs, which immediately follow.
1. Evidence disclosing the commission by the accused of a crime other than the one charged is admissible when the two crimes are parts of the same transaction, and by reason thereof are so connected in point of time or circumstance that one cannot be fully shown without proving the other. State v. Matheson, 225 N.C. 109, 33 S.E.2d 590; State v. Harris, 223 N.C. 697, 28 S.E.2d 232; State v. Leonard, 195 N.C. 242, 141 S.E. 736; State v. Mitchell, 193 N.C. 796, 138 S.E. 166; State v. Dail, 191 N.C. 231, 131 S.E. 573; State v. O'Higgins, 178 N.C. 708, 100 S.E. 438; State v. Davis, 177 N.C. 573, 98 S.E. 785; State v. Wade, 169 N.C. 306, 84 S.E. 768; State v. Adams, 138 N.C. 688, 50 S.E. 765; State v. Hullen, 133 N.C. 656, 45 S.E. 513; State v. Mace, 118 N.C. 1244, 24 S.E. 798; State v. Weaver, 104 N.C. 758, 10 S.E. 486; State v. Thompson, 97 N.C. 496, 1 S.E. 921; State v. Gooch, 94 N.C. 987; State v. Murphy, 84 N.C. 742; Stansbury on North Carolina Evidence, § 92; 20 Am.Jur., Evidence, § 311; 22 C.J.S., Criminal Law, § 663.
2. Where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite mental intent or state, even though the evidence discloses the commission of another offense by the accused. State v. Smith, 237 N.C. 1, 74 S.E.2d 291; State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5; State v. Summerlin, 232 N.C. 333, 60 S.E.2d 322; State v. Lowry, 231 N.C. 414, 57 S.E.2d 479; State v. Bryant, 231 N.C. 106, 55 S.E.2d 922; State v. Davis, 229 N.C. 386, 50 S.E.2d 37; State v. Edwards, 224 N.C. 527, 31 S.E.2d 516; State v. Colson, 222 N.C. 28, 21 S.E.2d 808; State v. Batson, 220 N.C. 411, 17 S.E.2d 511, 139 A.L.R. 614; State v. Smoak, 213 N.C. 79, 195 S.E. 72; State v. Ray, 212 N. C. 725, 194 S.E. 482; State v. Batts, 210 N.C. 659, 188 S.E. 99; State v. Horne, 209 N.C. 725, 184 S.E. 470; State v. Hardy, 209 N.C. 83, 182 S.E. 831; State v. Ferrell, 205 N.C. 640, 172 S.E. 186; State v. Miller, 189 N.C. 695, 128 S.E. 1; State v. Pannil, 182 N.C. 838, 109 S.E. 1; State v. Crouse, 182 N.C. 835, 108 S.E. 911; State v. Haywood, 182 N.C. 815, 108 S.E. 726; State v. Stancill, 178 N.C. 683, 100 S.E. 241; State v. Simons, 178 N.C. 679, 100 S.E. 239; State v. Leak, 156 N.C. 643, 72 S.E. 567; State v. Boynton, 155 N.C. 456, 71 S.E. 341; State v. Plyler, 153 N. C. 630, 69 S.E. 269; State v. Hight, 150 N.C. 817, 63 S.E. 1043; State v. Register, *367 133 N.C. 746, 46 S.E. 21; State v. Walton, 114 N.C. 783, 18 S.E. 945; State v. White, 89 N.C. 462; State v. Murphy, supra; State v. Gailor, 71 N.C. 88, 17 Am.Rep. 3; Stansbury on North Carolina Evidence, § 92; 20 Am.Jur., Evidence, § 313; 22 C.J.S., Criminal Law, § 686.
3. Where guilty knowledge is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite guilty knowledge, even though the evidence reveals the commission of another offense by the accused. State v. Bryant, supra; State v. Smoak, supra; State v. Ray, 209 N.C. 772, 184 S.E. 836; State v. Pannil, supra; State v. Mincher, 178 N.C. 698, 100 S.E. 339; State v. Winner, 153 N.C. 602, 69 S.E. 9; State v. Murphy, supra; State v. Twitty, 9 N.C. 248; Stansbury on North Carolina Evidence, § 92; 20 Am.Jur., Evidence, § 313; 22 C.J. S., Criminal Law, § 685.
4. Where the accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person, evidence that the accused committed the other offense is admissible to identify him as the perpetrator of the crime charged. State v. Summerlin, supra; State v. Biggs, 224 N.C. 722, 32 S.E.2d 352; State v. Tate, 210 N.C. 613, 188 S.E. 91; State v. Flowers, 211 N.C. 721, 192 S.E. 110; State v. Ferrell, supra; State v. Miller, supra; State v. Griffith, 185 N.C. 756, 117 S.E. 586; State v. Spencer, 176 N.C. 709, 97 S.E. 155; State v. Hullen, supra; State v. Weaver, supra; State v. Thompson, supra; Stansbury on North Carolina Evidence, § 92; 20 Am.Jur., Evidence, § 312; 22 C.J.S., Criminal Law, § 684.
5. Where evidence tends to prove a motive on the part of the accused to commit the crime charged, it is admissible, even though it discloses the commission of another offense by the accused. State v. Birchfield, supra; State v. Oxendine, 224 N.C. 825, 32 S.E.2d 648; State v. Lefevers, 216 N.C. 494, 5 S.E.2d 552; State v. Smoak, supra; State v. Miller, supra; State v. Griffith, supra; State v. Brantley, 84 N.C. 766; State v. Morris, 84 N.C. 756; Stansbury on North Carolina Evidence, § 92; 20 Am.Jur., Evidence, § 313; 22 C.J. S., Criminal Law, § 687.
6. Evidence of other crime is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission. State v. Smoak, supra; State v. Batts, supra; State v. Flowers, supra; State v. Miller, supra; State v. Pannil, supra; State v. Stancill, supra; State v. Boynton, supra; Stansbury on North Carolina Evidence, § 92; 20 Am.Jur., § 314; 22 C.J.S., Criminal Law, § 688. Evidence of other crimes receivable under this exception is ordinarily admissible under the other exceptions which sanction the use of such evidence to show criminal intent, guilty knowledge, or identity.
7. In prosecutions for crimes involving illicit sexual acts of a consensual character between the same parties, it is permissible for the State to introduce evidence of both prior and subsequent acts of like nature as corroborative or explanatory proof tending to show the mutual disposition of the participants to engage in the act and rendering it more probable that the act relied on for conviction occurred. State v. Broadway, 157 N.C. 598, 72 S.E. 987; State v. Raby, 121 N.C. 682, 28 S.E. 490; State v. Dukes, 119 N.C. 782, 25 S.E. 786; State v. Chancy, 110 N.C. 507, 14 S.E. 780; State v. Stubbs, 108 N.C. 774, 13 S.E. 90; State v. Parish, 104 N.C. 679, 10 S.E. 457; State v. Guest, 100 N.C. 410, 6 S.E. 253; State v. Pippin, 88 N.C. 646; State v. Kemp, 87 N.C. 538; 22 C.J.S., Criminal Law, § 691 u.
8. In prosecutions for continuing, offenses, evidence of other acts than that charged is generally admissible to corroborate *368 or explain the evidence showing the act charged. State v. Hildebran, 201 N.C. 780, 161 S.E. 488; 22 C.J.S., Criminal Law, § 689.
Since evidence of other crimes is likely to have a prejudicial effect on the fundamental right of the accused to a fair trial, the general rule of exclusion should be strictly enforced in all cases where it is applicable. State v. Beam, 184 N.C. 730, 115 S.E. 176; 22 C.J.S., Criminal Law, § 683.
The Supreme Court of South Carolina furnishes this illuminating criterion for determining whether evidence of an offense other than the one charged is to be excluded under the general rule or admitted under one of the exceptions: "`Whether evidence of other distinct crimes properly falls within any of the recognized exceptions noted is often a difficult matter to determine. The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime. But the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny. Whether the requisite degree of relevancy exists is a judicial question to be resolved in the light of the consideration that the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors. Hence, if the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected.'" State v. Gregory, supra; State v. Lyle, 125 S.C. 406, 118 S.E. 803.
The State did not see fit to charge the defendant with larceny. The State elected to put her on trial for engaging in prostitution and occupying a building for the purpose of prostitution. Despite these facts, the State was permitted to offer testimony at the trial for the avowed purpose of proving the defendant guilty of larceny. When the evidence at the trial is read as a whole, it is crystal clear that the supposed larcenous act of the defendant was separated in time, place, and circumstances from the crimes charged against her, and that it did not fall within any of the exceptions to the general rule excluding evidence of other offenses. It is likewise plain that the admission of the testimony relating to the supposed larcenous act was very prejudicial to the defendant's fundamental right to a fair trial of the charges against her. The testimony was calculated to inflame the minds of the jurors against her and to preclude that calm and impartial consideration of her case to which she was entitled. Its admission requires that the cause be tried anew.
New trial.