STATE of North Carolina
v.
Wilbert LONG, Jr., et al.
No. 81.
Supreme Court of North Carolina.
March 15, 1972.*49 T. O. Stennett, Charlotte, for defendant appellants.
*50 Robert Morgan, Atty. Gen., and Claude W. Harris, Asst. Atty. Gen., for the State of N. C.
HUSKINS, Justice:
Without objection, Will Johnson, Jr., stated on cross-examination that he had been "convicted of receiving stolen goods; of unlawful concealment. I'm presently on parole. I am on parole for receiving stolen goods and damage to property. I am presently under indictment for armed robbery. Not this case some other case. I have two cases. . . . State's Exhibit No. 2 is my pistol. I traded a .32 pistol which I owned for that pistol right there. . . at a night club. The FOUNTAIN BLEAU [sic] night club. I got it from a guy in there . . . on the 25th of January." Then the following exchange occurred: (Question) "Do you deny getting that pistol, Mr. Johnson, in an armed robbery in a Little General Store?" Objection. Overruled. (Answer) "Yes, I deny it." The question was repeated over objection and again denied.
In rebuttal, the State examined Joseph Lee Gammeter who, over objection, was permitted to testify that William R. Stack was manager of the Little General Store on Monroe Road where Gammeter worked. Mr. Stack owned the pistol identified as State's Exhibit 2 and left it at the store with the witness Gammeter on 18 January 1971. At approximately 10 p. m. on that date the defendant Will Johnson, Jr., entered the store, held it up and, among other things, took the .22 caliber pistol identified as State's Exhibit 2 and carried it away.
With respect to the foregoing rebuttal testimony of Joseph Gammeter, the judge charged the jury as follows:
"Members of the jury, the evidence of Joseph Lewis Gammeter with reference to Will Johnson, Jr., and the taking of the pistol, State's Exhibit No. 2, you will not consider this evidence against either Wilbert Long, Jr., or Eddie Lee Johnson. Nor will you consider it against Will Johnson, Jr., except, as it may tend to contradict him upon his evidence as to where he obtained the pistol, State's Exhibit No. 2, and not otherwise. You will not consider it as substantive evidence."
Defendants assign as error (1) the admission of the foregoing rebuttal testimony of Joseph Gammeter and (2) the judge's charge with respect to it. Defendants contend that where Will Johnson, Jr., got State's Exhibit 2 was a collateral matter and the State was bound by his answer, thus precluding the rebuttal testimony. Furthermore, defendants say that admission of the rebuttal testimony permitted the State to offer evidence of another, separate and distinct armed robbery allegedly committed by Will Johnson, Jr., but of which he had never been convicted. Defendants therefore contend that the rebuttal testimony of the witness Gammeter was erroneously received to their prejudice. We now examine the validity of this contention.
It is a general rule of evidence in North Carolina "that answers made by a witness to collateral questions on cross-examination are conclusive, and that the party who draws out such answers will not be permitted to contradict them; which rule is subject to two exceptions, first, where the question put to the witness on cross-examination tends to connect him directly with the cause or the parties, and, second, where the cross-examination is as to a matter tending to show motive, temper, disposition, conduct, or interest of the witness toward the cause or parties." State v. Jordan, 207 N.C. 460, 177 S.E. 333 (1934). This has been the rule since State v. Patterson, 24 N.C. 346 (1842). Accord, State v. Carden, 209 N.C. 404, 183 S.E. 898 (1936); State v. Spaulding, 216 N.C. 538, 5 S.E.2d 715 (1939); State v. Wilson, 217 N.C. 123, 7 S.E.2d 11 (1940); State v. King, 224 N.C. 329, 30 S.E.2d 230 (1944); State v. Poolos, 241 N.C. 382, 85 S.E.2d 342 (1955); State v. Cutshall, 278 N.C. *51 334, 180 S.E.2d 745 (1971); Stansbury, North Carolina Evidence (2d ed.), Witnesses § 48(3).
The proper test for determining what is material and what is collateral is whether the evidence offered in contradiction would be admissible if tendered for some purpose other than mere contradiction; or in the case of prior inconsistent statements, whether evidence of the facts stated would be so admissible. Stansbury, supra; State v. Taylor, 250 N.C. 363, 108 S.E.2d 629 (1959). See Wigmore on Evidence (3d ed.) §§ 1003, 1020. When this test is applied to the challenged evidence, the inapplicability of the foregoing exclusionary rule becomes apparent. The inquiry on cross-examination of Will Johnson, Jr., as to where and how he came into possession of the pistol used in this attempted armed robbery is an inquiry tending to establish an essential element of the very crime for which defendants were on trial rather than an inquiry about a collateral matter. The State is required to show, as an essential element of attempted armed robbery, that the attempt was made with the felonious intent to deprive the owner of his property permanently and to convert it to the use of the taker. State v. McCrary, 263 N.C. 490, 139 S.E.2d 739 (1965). "The taking must be done animo furandi, with a felonious intent to appropriate the goods taken to some use or purpose of the taker." State v. Smith, 268 N. C. 167, 150 S.E.2d 194 (1966).
In this case each defendant, testifying in his own behalf and in behalf of his codefendants, denied having any intention or making any attempt to commit robbery. The disturbance inside the service station was explained as a fight over the refund of a dime which had been deposited in a machine that delivered no merchandise. Thus the State's allegation and evidence tending to show a felonious intent to rob, and defendants' denial with evidence tending to show a complete absence of such intent, placed in issue a vital fact with the burden on the State to prove its existence beyond a reasonable doubt. The rebuttal testimony of Joseph Gammeter was competent and material as substantive evidence bearing upon a fact in issuethe intent existing in the mind of Will Johnson, Jr., when he and his codefendants approached and entered the Gulf Service Station on the night in question. For this reason the cross-examination of Will Johnson, Jr., concerning the pistol used in the commission of the crime for which he was on trial was not an inquiry concerning a collateral matter, and the State was not bound by his answer. The fact that the court erroneously limited consideration of the rebuttal testimony against Will Johnson, Jr., to mere contradiction or impeachment of him was favorable to said defendant and he is in no position to complain. State v. Quick, 150 N.C. 820, 64 S.E. 163 (1904); State v. Fowler, 151 N.C. 731, 66 S.E. 567 (1909); State v. Chase, 231 N.C. 589, 58 S.E.2d 364 (1950). It was an error prejudicial to the State and not to him.
But defendants say admission of the rebuttal testimony violated another well-settled rule of evidence to the effect that while prosecuting for one crime the State cannot offer evidence to show defendant committed another criminal offense. This requires an examination of the rule and the exceptions to it.
It is a general rule of evidence that in a prosecution for a particular crime the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. Stansbury, North Carolina Evidence (2d ed.) § 91. The rule and eight well-defined exceptions to it are thoroughly discussed and documented in a scholarly opinion by Ervin, J., in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). The second exception to the rule is expressed in McClain as follows: "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 *52 mental intent or state, even though the evidence discloses the commission of another offense by the accused."
The rebuttal testimony of Joseph Gammeter falls within the second exception to the rule, quoted above, and was competent as substantive evidence bearing upon the criminal intent of Will Johnson, Jr., on the night of 12 February 1971 when he and his codefendants entered the Gulf Service Station they are charged with attempting to rob. His intent is a relevant but disputed fact which the challenged evidence tends to prove. It will not be excluded merely because it also shows Will Johnson, Jr., to have been guilty of an independent crime. Stansbury, North Carolina Evidence (2d ed.) § 91; State v. Dawson, 278 N.C. 351, 180 S.E.2d 140 (1971).
The court properly instructed the jury not to consider the rebuttal evidence against Wilbert Long, Jr., or Eddie Lee Johnson, and the law presumes the jury followed the judge's instructions. State v. Moore, 276 N.C. 142, 171 S.E.2d 453 (1970); State v. Ray, 212 N.C. 725, 194 S.E. 482 (1938). Hence they have in nowise been prejudiced.
Defendants having failed to show prejudicial error, the verdicts and judgments must be upheld.
No error.