State v. Hale

57 S.E.2d 322 (1950)

231 N.C. 412

STATE v. HALE.

No. 721.

Supreme Court of North Carolina.

February 3, 1950.

*323 Attorney-General Harry M. McMullan, Assistant Attorney-General Ralph M. Moody, and John R. Jordan, Jr., Member of Staff, Raleigh, for the State.

Deal & Hutchins, Fred S. Hutchins, Winston-Salem, and John H. Folger, Mount Airy, for defendant.

STACY, Chief Justice.

The State's cases rests upon the testimony of two accomplices, and the supporting evidence of Ann Lumley. For factual similarity, see State v. Rising, 223 N.C. 747, 28 S.E.2d 221.

In charging the jury on the weight and credibility to be ascribed to the testimony of Grady Jones and Claude Weldy, Jr., the trial court used this language: "Now the court charges you that the State has offered two witnesses in this case who are accomplices within the meaning of the law. * * * The State insists and contends * * * that their testimony is supported by other facts and circumstances in the case, and that their testimony is not unsupported and does not go to your hands for your consideration as unsupported testimony of an accomplice. * * * Our Court has said this as to the law on accomplices: `The unsupported testimony of an accomplice, while it should be received by the jury with caution, if it produces convincing proof of the defendant's guilt, is sufficient to sustain a conviction.' That is as to the unsupported testimony of accomplices.

"(C) Now, when the testimony is unsupported, the court charges you that it is your duty to scrutinize such testimony carefully and with care, great care, to see whether or not they are telling you the truth. (D)".

The defendant excepts to the last portion of the charge between (C) and (D), because he says it carries the clear inference that if such testimony be supported, as here contended, it is not to be so scrutinized.

It bears against a witness that he is an accomplice in the crime and he is generally regarded as interested in the event. State v. Roberson, 215 N.C. 784, 3 S.E.2d 277. The rule of scrutiny, therefore, applies to the testimony of an accomplice whether such testimony be supported or unsupported by other evidence in the case. 20 Am.Jur. 1088; 53 Am.Jur. 483 and 584. Of course, corroboration of such testimony, or the lack of it, may greatly affect its credibility or worthiness of belief in the eyes of the jury. But the rule of scrutiny and the weight of the testimony are different mattersthe one belongs to the court; the other to the twelve. State v. Beal, 199 N.C. 278, 154 S.E. 604. The court is not required to charge on the rule in the absence of a request to do so, and his voluntary reference to it rests in his sound discretion. State v. Herring, 201 N.C. 543, 160 S.E. 891. However, having undertaken to give the jury the rule of law applicable, the court was under the duty to state the rule correctly as applied to the evidence in the case. State v. Correll, 228 N.C. 28, 44 S.E.2d 334; State v. Fairley, 227 N.C. 134, 41 S.E.2d 88; Jorrett v. High Point Trunk & Bag Co., 144 N.C. 299, 56 S.E. 937.

The charge is susceptible of the interpretation, and we think the jury must have so understood it, that if the testimony of the accomplices were supported by the evidence of Ann Lumley, as the State contended, the rule of scrutiny would not apply. This was apparently prejudicial to the defendant's case.

We have not overlooked the cases in which seemingly similar instructions have *324 been upheld, but in none of the cases so far examined was the question here debated presented or decided.

Consideration of the remaining exceptions is omitted as they may not arise on another hearing.

For the error as indicated a new trial seems necessary. It is so ordered.

New trial.