State v. . Freeman

Walker, J.

There is one exception by the defendant which we think is well taken. The State introduced in evidence a canceled check for $123, payable to H. B. Allen or bearer, which was not endorsed. The defendant’s objection to this paper as evidence was overruled, and he duly excepted. "We are unable to conceive in what way, or for what purpose, this evidence was competent or relevant. There is nothing on the check showing that it had any connection with the case. It was not drawn by the defendant, so far as appears, and his name is not on it. Why it was allowed to be considered by -the jury we were not informed. It was wholly irrelevant to the controversy.- But it was contended by the State that if it was wholly irrelevant, the effect would be, in law, that it was harmless and not, therefore, ground for reversal. But we are not sure of this conclusion. Having been admitted by the court,'over the defendant’s objection, it was capable of being used by the State as some evidence of the defendant’s guilt, in connection with the other evidence, and was no doubt so used. It was argued before us that it was so used, and very effectively. This is not in the record, but we are at liberty to ihfer that as the court held it to be relevant and competent evidence of guilt, tbe State made use of it as sueb to further a conviction. It does not appear to us that it was harmless or did not prejudice the defendant. "While there is nothing to connect the defendant with the drawing of the check, or the possession of it at any time,, it was no doubt used for the purpose of showing that as he had money on Thursday, when he had none on the day before, he must have received the money, in some way, by means of the check, but this is not a warrantable inference. There is no evidence that the check was found in defendant’s possession and taken from him. There is nothing more in the proof than the bare check itself, without the least explanatory evidence, and it should have been excluded by the court as prejudicial to the defendant. It cannot be said that irrelevant evidence, though generally so, is always harmless. We have held otherwise. S. v. Jones, 93 N. C., 611; S. v. Mikle, 81 N. C., 552. It may sometimes, even though rarely, be very prejudicial to the party against whom it is admitted, as it was held to be in S. v. Jones, supra. Considering the nature of the other evidence in this ease, that relating to the check, though technically irrelevant, might have been used to account for defendant’s having money at one time when the night before he was impecunious, and we have no doubt it was so used by the State and considered by the jury.

There was evidence upon which the jury could have convicted the defendant apart from the check, but they should have been confined to the competent and relevant proof in considering the case. He was the man who was seen at the tobacco warehouse the day after the theft* was committed, and was recognized as the man who had the tobacco there,, and asked the witness F. GL Avent to help him to straighten it out and pack it, and gave him the sticks as he was not going to plant tobacco the next season. The evidence was sufficient to identify the defendant as the one who had the tobacco at the warehouse. S. v. Carmon, 145 N. C., 481; S. v. Lytle, 117 N. C., 803; S. v. Costner, 127 N. C., 566; S. v. Lane, 166 N. C., 333. But the evidence as to identity is stronger here than it was in those cases. There was evidence as to the identity of the tobacco found in the warehouse .with that which was stolen.

While we hold that there was some evidence for the jury to consider, upon the question of defendant’s guilt, that in regard to the check was incompetent, and should not have been admitted, and was sufficiently prejudicial to entitle the defendant to another trial.

The other exceptions may not be again presented.

New trial