Upon her cross examination by the defendant, (158) the prosecutrix denied that she ever had sexual intercourse with Madison Hiatt. Madison was afterwards introduced and testified that about four years before the child was begotten, and when he was a land of eleven years of age, he had such intercourse with the prosecutrix. The issue was whether Patterson was the father of the child, and it was wholly collateral to this issue, what had transpired four years before between the prosecutrix and the witness. The rule of evidence is thus stated in 1 Greenleaf, Sec. 449: "But it is a well settled rule, that a witness cannot be cross examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testimony. And if a question is put to a witness which is collateral and irrelevant to the issue, his answer cannot be contradicted, but is conclusive against him."
So in the State v. Patterson, 24 N.C. 346, where a witness on his cross examination was asked whether the prosecutor had not paid him for coming from another State to be a witness, and he answered that he had not, it was held to be incompetent for the defendant to introduce witnesses to prove his declarations, that he had been so paid. Clark v. Clark,65 N.C. 155.
It was, therefore conclusive upon the defendant, when the prosecutrix denied having had sexual intercourse with the witness, and the the court should not have allowed the testimony of Madison Hiatt. If the prosecutrix had sworn falsely in answer to this collateral matter, it would not have been perjury. 1 Greenleaf, Sec. 448.
Had the testimony of Madison Hiatt been competent, the remarks upon it by his Honor, would have constituted error, for however *Page 130 improbable or unreasonable the story, its credibility was for the jury alone. Bue as it was incompetent, the defendant has received no prejudice thereby.
(159) The other exceptions of the defendant were not much pressed, and are untenable.
There is no error.
PER CURIAM. Judgment affirmed.
Cited: S. v. Johnston, 82 N.C. 591; S. v. Parish, 83 N.C. 614; Kramerv. Electric Light Co., 95 N.C. 279; S. v. Hawn, 107 N.C. 811; S. v.Perkins, 117 N.C. 701; Burnett v. R. R., 120 N.C. 519; S. v. Warren,124 N.C. 808; Carr v. Smith, 129 N.C. 234.