State v. Austin

204 S.E.2d 675 (1974)

285 N.C. 364

STATE of North Carolina v. Jodie V. AUSTIN.

No. 66.

Supreme Court of North Carolina.

May 15, 1974.

*676 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Walter E. Ricks III, Raleigh, for the State.

Joe P. McCollum, Jr., Monroe, for defendant-appellant.

SHARP, Justice:

Upon this appeal defendant brings forward only one assignment of error, that the trial judge committed prejudicial error when he admitted in evidence the motel registration card, S-7.

Before any writing will be admitted in evidence, it must be authenticated in some *677 manneri. e.its genuineness or execution must be proved." 2 Stansbury's N. C. Evidence (Brandis rev., 1973) § 195.

In State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971), in a prosecution for murder, the State introduced in evidence checks, notes, and other financial documents, purportedly signed by the defendant and relevant to the State's contention that he and the murder victim had been involved in business transactions which provided the motive for the murder. However, no evidence in the record authenticated the defendant's purported signature upon any of these documents. In awarding a new trial this Court said, "The mere fact that his [defendant's] name appears on each document and the fact that the checks naming him as payee were paid by the drawee bank do not constitute proof of the genuineness of his several signatures or proof that any of these documents actually passed through the defendant's hands.... Their admission in evidence was substantially prejudicial to the defendant." Id. at 591-592, 180 S.E.2d at 774-765. In its brief for the Court of Appeals the State conceded that it was unable to distinguish the "holding in State v. Vestal ... from the instant case."

No evidence in the record now before us identifies the handwriting on S-7 as defendant's. Nor is there any evidence identifying defendant as the man who registered as Jodie Austin from Rockingham, N.C., or as the man to whom a clerk assigned Room 926. In the absence of such identification the mere fact that defendant's name and that of his daughter appear on the card constitutes no proof that the signature is his or that he authorized it. The Court of Appeals, however, held that the card was not introduced for that purpose; that the State offered it in corroboration of the prosecuting witness' testimony, and for that purpose it was admissible. In introducing the card the solicitor for the State did not specify the purpose for which it was offered. He merely offered it and, when defendant objected to its introduction, the court merely said, "overruled." This ruling was erroneous.

Once admitted the registration card not only corroborated the prosecuting witness and impeached defendant on a vital point in the case, but it also constituted substantive evidence that defendant had had incestuous relations with his daughter in Charlotte on April 20th. Any attempt by the judge to restrict this evidence would have been futile, for no limiting instruction could have overcome its devastatingly prejudicial effect upon defendant's case. See 1 Stansbury's N.C. Evidence (Brandis rev. 1973) § 79.

In a prosecution for incest, evidence of acts of incestuous intercourse between the prosecuting witness and defendant other than those charged in the indictment, whether prior or subsequent thereto, is admissible to corroborate the proof of the act relied upon for conviction. See State v. Browder, 252 N.C. 35, 112 S.E.2d 728 (1960); 2 N.C. Index 2d Criminal Law § 34 (1967); 41 Am.Jur.2d, Incest § 17 (1969). As Judge Carson pointed out in his dissent, the registration cardpurportedly bearing defendant's signature was the only evidence other than his daughter's testimony which bore directly upon the question whether defendant had had incestuous relations with her. The weight of this card was undoubtedly sufficient to overcome all discrepancies in the State's evidence. Its admission therefore requires a new trial. Accordingly the decision of the Court of Appeals is reversed with directions that it remand this cause to the Superior Court of Union County for a new trial.

Reversed and remanded.