The defendant was convicted of the crime of rape, in the criminal court. On appeal to the Superior Court his Honor held that there was error in the trial, and the State appealed to this Court.
During the trial the prosecutrix, Harriet McMillan, was examined and cross-examined. The defendant examined the committing justice of the peace as to the evidence of the prosecutrix before him, who recited her evidence fully to the jury for the purpose of showing discrepancies in her two statements. The State on cross-examination proposed to ask the witness, "if the testimony of Harriet McMillan, the prosecutrix, in this court was substantially the same as it was on the hearing before him in the justice's court." The objection of the defendant was overruled, and the question admitted, and the defendant excepted. The witness said: "She testified to about the same on both trials."
The admission of this question and answer was error. The general rule of law is that the jury (or the judge, as the case may be) are the triers of matters of dispute, and from their conclusions from the facts before them, and not upon the opinions of others on the subject. So that facts and not opinions are to be listened to by the jury.
To this general rule there are some exceptions: 1. The opinion of experts; 2. Opinions on the question of identity; 3. Opinions received from necessity, i. e., when from the nature of the subject under investigation, no better evidence can be obtained. Illustration: (1082) Whether A was sick on a certain day, the opinion of a person who saw him on that day that A appeared sick, is admissible. McKee v.Nelson, 4 Cowan, 355. *Page 702
The ordinary witness is not embraced within these exceptions, and he therefore falls under the general rule. That is the case in this instance.
Whether the two statements by the prosecutrix were substantially the same, is a fact to be determined by the jury, and not the witness. That would in effect make the witness the jury as to that fact. It was competent for the witness to state what the prosecutrix said on the former trial, and the jury would then determine whether the two statements were the same or not.
The converse of the principle is stated thus: "To impeach the credibility of a witness by proving that he swore differently as to a particular fact on a former trial, it is not necessary that the impeaching witness should be able to state all that the impeached witness then deposed to; it is sufficient if he is able to prove the repugnancy as to the particular fact, with regard to which it is alleged to exist." Edwards v.Sullivan, 30 N.C. 302.
There must, therefore, be a new trial in the criminal court, and it is so ordered.
The judgment of the Superior Court was correct, and it is
Affirmed.
Cited: S. v. McDowell, 129 N.C. 524; S. v. Shuford, 152 N.C. 810.
(1083)