State v. Steen

Adams, J.,

concurring: The defendant relies upon three exceptions, neither of which in my judgment can be sustained, and for this reason I do not hesitate to concur in the opinion of the Court as written by the Chief Justice.

1. The defendant entered a formal motion to quash the indictment on the ground that certain members of the grand jury, by whom the bill was returned, were directly or indirectly interested in the prosecution of the defendant; but both the opinion of the Court and the dissenting-opinion of Associate Justice Stacy, sub silentio, admit that this exception requires no discussion.

*7732. The defendant’s exception to his Honor’s charge, I am convinced is equally untenable. It is freely conceded that the burden of proving an alibi does not rest upon the defendant, and that it is incumbent upon the State to establish his guilt beyond a reasonable doubt; but, as I see it, the instruction complained of strictly complies with these principles. If there is one ruling to which this Court has adhered, it is that the instructions given by a trial judge shall be considered in their entirety and not in disjointed, detached, or isolated paragraphs; and when thus treated, his Honor’s charge was less favorable to the State than were several other charges that have been sustained on appeal. With respect to the alibi, the judge gave this instruction: “If one accused of crime, when the time and place of the commission of the alleged crime is fixed, can show, and does show, that at that time, and at the place alleged, that he was not there, and it would have been impossible for him to have committed the crime, that is evidence that the jury may consider in passing upon the question, and if it is established he could not have committed the crime on account of being elsewhere at the time and place fixed, why that would be a defense.” And at the close of the charge he said: “Now, are you satisfied beyond a reasonable doubt that this defendant made these sales as charged by the State? These sales of spirituous liquor to Mr. Sapphire? If so, it would be your duty to convict him. If you have a reasonable doubt about it, it would be your duty to acquit.”

In S. v. Freeman, 100 N. C., 429, the trial judge, after telling the jury that the burden was upon the State to show the defendant’s guilt beyond a reasonable doubt, gave this additional instruction: “The rule of law is, in a ease of this kind, where the prisoner sets up the defense of an alibi — that is, that he was at some other place at the time when the crime was committed — -the burden of proof rests on the prisoner to establish the fact to the satisfaction of the jury that he was not present, but was at some other place when the crime was committed. If the jury is satisfied from the evidence that the prisoner remained at home on the night in question, this would be an end of the case, and the prisoner should be acquitted; but if they are not satisfied of the truth of the alibi, then it is for them to say whether they are satisfied beyond a reasonable doubt that the rape was committed upon the person of the prosecutrix by the prisoner, as alleged by the State.” Commenting on the charge, Chief Justice Smith said: “While we do not assent to what is said about the shifting of the burden of proof, when the proof offered by the prisoner tends to show his absence from the place where the offense was perpetrated, and his presence elsewhere at the time, yet the charge in general is so clear and explicit as to what is required of the State in *774order to a conviction that it could not be misleading to the jurors, fairly considered.”

And in S. v. Bryant, 178 N. C., 705, Mr. Justice Walker said: “The judge’s charge on the question of the alibi was, it seems to us, not prejudicial to the defendant. He charged substantially that the prisoner relies upon an alibi, which means that he was not, and could not have been at the place of the homicide when it was committed, as he was elsewhere at the time. He is not required to satisfy you of the alibi beyond a reasonable doubt, but if the jury is satisfied from the evidence that he was not at the place when the homicide was committed, and at the time when the deceased met her death, then a verdict of not guilty should be returned, etc. But if the jury is not so satisfied, then it is for the jury to consider all the evidence and say whether or not they are satisfied from the evidence, beyond a reasonable doubt, that the prisoner killed the deceased, etc. This instruction was not erroneous, but followed our decisions. S. v. Jaynes, 78 N. C., 504; S. v. Reitz, 83 N. C., 634; S. v. Starnes, 94 N. C., 973; S. v. Freeman, 100 N. C., 429; S. v. Rochelle, 156 N. C., 641.”

In these eases the-court expressly or substantially imposed upon the defendant the burden of proving his alibi, and in each case the instruction was sustained. But in the instant ease the learned judge did not go so far. As I understand them, his instructions, taken together, mean this: If the defendant showed that he was at the particular places designated by his witnesses when the sales were made, this would be a defense; but even if he failed to do so, the burden would still rest upon the State to satisfy the jury beyond a reasonable doubt that he made the sales at the dates and places testified to by the witnesses for the prosecution.

The instruction is in line with the decisions of this Court.

3. In considering the exception referring to the testimony of A. G. Corpening, it is important to keep in view the restricted scope of the examination, and to avoid confusion by the insertion of extraneous and unrelated questions.

Our decisions have unquestionably settled the “principle that a witness will not be allowed to testify as to general character until he shall have first qualified himself by saying that he knows the reputation of the person whose character is in question, when objection is made on that ground, but I think this is not the ground presented in the defendant’s brief. The Chief Justice has well said that the defendant raises no objection to the fact that the usual preliminary question was not put to the witness, and his conclusion is abundantly supported by the defendant’s brief. Apart from reference to certain portions of his Honor’s charge, the learned counsel states the gravamen of his exception in these *775words: “It is a fundamental principle of character evidence that the witness must have the foundation for forming his opinion or the means of knowing the general character of the party.” Emphasis is laid not on the knowledge acquired, but on the means by which it is acquired, “the foundation for forming his opinion.” To this one question the argument was addressed, and it appears that the only attack on the admission of the evidence or the qualification of the witness rests on the admitted fact that he went to Atlanta and investigated Sapphire’s character; so the exception presents the direct question whether evidence as to character, based on knowledge acquired by such investigation, is admissible as a matter of law. "

In opposition it is urged that the witness necessarily speaks, not of his own knowledge, but of what he has learned. True, what another has told the witness about one’s character is not competent in itself (S. v. Mills, 184 N. C., 694), but in its ultimate analysis a witness’s estimate of general character is a composite of what he has heard and otherwise acquired. I find nothing in the record restricting the witness’s knowledge to what he had heard. Whether it was so restricted was a matter to be elicited by cross-examination. Greenleaf very clearly draws the distinction between character and reputation (1 Ev., sec. 461-d), but in our courts “general character” is treated in actual'practice as synonymous with general reputation. Upon this principle it is generally held, as shown by cases cited in the dissenting opinion, that it is not indispensable that a witness should have resided in the same community with the person of whose character he proposes to testify, the chief requirement being that the witness’s knowledge must be derived from intercourse with the neighbors or associates of the person whose character is in question. I can see no convincing reason why such knowledge cannot be acquired by one who goes into a particular community for the particular purpose of attaining this end. Whether the witness has actually acquired such knowledge may in some instances be a preliminary question for the court when properly raised, and in others a question for the jury, but this does not warrant the assumption that such knowledge cannot be acquired in the manner indicated.

Again, it is said that if this practice is allowed it will be possible for a party to procure the testimony of prejudiced witnesses. In its practical operation this objection may be urged against the law as it now stands. In a criminal action the State can neither compel the attendance nor take the deposition of a nonresident witness. But the defendant is not precluded; he has the right to introduce the deposition of witnesses, resident and nonresident. The objection, practically applied, would confer upon the defendant in such action exclusive access to the testimony of nonresident witnesses, ;prejudiced or otherwise, subject, of *776course, to cross-examination by the State. What doctrine could impart greater solace to a defendant whose conviction depended on the testimony of a nonresident witness ?

The two eases apparently supporting the exception are Douglass v. Tousey, 20 A. D. (N. Y.), 616, and Reid, v. Reid, 17 N. J. Eq., 101, but they are distinguishable from the case at bar. In the former a witness went to another part of the State to subpoena witnesses and “learn the character” of the prosecutrix, but there being evidence only of the witness’s subjective opinion, the proposed evidence was excluded as hearsay. And in Reid’s case, supra, the witness merely detailed the opinions of others. On the other hand, in Foulkes v. Sellway, 3 Esp., 236, Lord Kenyon sustained the testimony of a witness who had gone to the place where the plaintiff lived to inquire into his character.

My conclusion is this: living in the same community with a witness whose character is under investigation is not indispensable to a knowledge of his character, for as Greenleaf says the witness to reputation must be one who by residence in the community, or otherwise, has had an opportunity to learn the community’s estimate; and if the witness has knowledge of such estimate he is qualified to testify. I think my conclusion is sustained by the general trend of the decisions.