STATE
v.
J. Paul FRIZZELLE, Jr.
No. 290.
Supreme Court of North Carolina.
April 12, 1961.T. W. Bruton, Atty. Gen., and G. A. Jones, Jr., Asst. Atty. Gen., for the State.
White & Aycock, Kinston, for defendant.
MOORE, Justice.
There are twenty-four assignments of error. We discuss only two.
(1). While Mr. Stevens, Chief of Police of Snow Hill, was testifying for the State on direct examination, the following transpired:
"Witness: * * * (T)he driver, which was a colored man, made the statementthat he saw the truck coming and he pulled clean off the roadnow there might have beenI say clear offhis front wheels were clear off the road and the rear end could have been just on, maybe a foot.
"Court: He said what, Chief?
"Witness: He made the statement that he saw the truck coming, I mean the car coming, and he pulled off to keep from getting hitpulled off the highway. Exception."
Later, while giving the State's contentions, the court instructed the jury: "* * * that the colored man who was driving the truck said there, in the presence of the defendant, that he saw the car coming and he pulled off the highway to keep from getting hit * * *."
The driver of the truck did not testify at the trial. The record does not disclose that he made any statement in defendant's presence. The statement attributed to him gives a much worse impression of defendant's conduct in driving than that of the eyewitness who testified. The statement of the truck driver was pure hearsay. In causing it to be repeated by the witness and in charging the jury that it was made in the presence of defendant, the court erred to the prejudice of defendant. The question propounded by the judge eliciting a repetition of the hearsay evidence tended to emphasize it and impress it on the minds of the twelve. "Ordinarily an inadvertence in stating the facts in evidence (in charging the jury) should * * * be brought to the attention of the trial court in apt time. But where the misstatement is of a material fact not shown in evidence, it is not required that the matter should have been brought to the trial court's attention." (Parentheses added.) Strong: N. C. Index, Vol. 1, Appeal and Error, s. 24, p. 102; Baxley v. Cavenaugh, 243 N.C. 677, 92 S.E.2d 68.
(2). Mr. Pridgen, a State highway patrolman, who was an eyewitness to the collision and observed defendant on the occasion in question, was absent from the State and did not testify at the trial.
During the testimony of Mr. Letchworth, a police officer, on redirect examination the following took place:
"Q. Mr. Letchworth, the defendant testified that you were present at the time a statement was allegedly made by Officer Pridgen with respect tothat `Mr. Frizzelle, I am glad you were not drinking.' Did you overhear any such statement by Mr. Pridgen?
"A. No, I didn't hear him make no statement.
"The State Offered Original Warrant as Evidence.
"Objection.
"Court: For what purpose do you offer it?
*178 "Mr. Rouse: I offer it to show, Your Honor, that Mr. Pridgen's name is on that Warrant as a witness for the State.
"Court: Is this the Warrant that he is being tried under now?
"Mr. Rouse: He is being tried on a Bill of Indictment, Your Honor. It is a request for a Jury trialthat is, the original Warrant indicates it.
"Mr. White: That is the basis of my Objection, Your Honor.
"Objection Overruled. Exception.
"Warrant Admitted as Evidence for the State. Exception."
In the charge the court withdrew the warrant from the jury's consideration.
It is obvious that the solicitor desired the jury to gain the impression that Pridgen, if present, would testify that he had not said to defendant: "Mr. Frizzelle, I am glad you were not drinking." Mr. Pridgen was listed on the warrant as a State's witness. The solicitor's statement was made in the presence of the jury. It is reasonable to assume that the able solicitor took full advantage of this item of evidence in his argument to the jury. At the very best this evidence was self-serving on the part of the State and was of no greater dignity than hearsay.
"Evidence, oral or written, is called hearsay when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it." Stansbury: North Carolina Evidence, s. 138, p. 274.
The evidence was designed both to impeach defendant's credibility and to show his guilt. It is true that the court sought to withdraw it, but it had already been impressed on the minds of the jury. Its prejudicial effect was not subject to correction. State v. Choate, 228 N.C. 491, 500, 46 S.E.2d 476.
We are of the opinion that the assignments of error herein discussed, when considered with other assignments and the trial as a whole, were prejudicial and require that the case be retried.
New trial.