Opinion
(Decided 8 March, 1898.)
Trial — Improper Remarks of Trial Judge — Evidence — Recital in Deed — Character of Defendant.
1. Where, on the trial of an action, the plaintiff objected to the defendant's showing that the recital of payment in a deed introduced by himself was untrue, the trial judge remarked to defendant's counsel, "The plaintiff seems to have put you in a hole; I would be glad to help you if I could": Held, that such remark was objectionable under section 413 of The Code, forbidding any expression upon the weight of the evidence.
2. The acknowledgment in a deed of the payment of the purchase money, not being contractual but only a receipt, is only prima facie evidence, and evidence to contradict it may be offered by a party introducing the deed.
3. Where a defendant in an action has neither been examined as a witness nor his character has been called into question by the nature of the action, the plaintiff will not be allowed to impeach his character either generally or by specific charges of criminal or corrupt acts tending to impeach it.
(223) ACTION, tried at April Term, 1897, of WAKE, before Adams, J., and a jury.
Battle Mordecai for plaintiff.
(225) J. H. Fleming for defendant (appellant).
The plaintiff objected to the defendant's showing that the recital of payment in a deed introduced by himself was untrue. His Honor remarked to counsel for defendant, "The plaintiff seems to have put you in a hole. I would be glad to help you if I could." The remark was excepted to by the defendant and was objectionable under the act of 1796 (now section 413 of The Code), which forbids any expression upon the weight of the evidence. Besides, the evidence was admissible, for the acknowledgment in a deed of the payment of the purchase money is not contractual but is merely a receipt, and therefore only prima facie evidence. Shaw v. Williams, 100 N.C. 272; Barbee v. Barbee, 108 N.C. 581; cited with approval in Cheek v. Nall, 112 N.C. 370.
It was also error to permit evidence of the defendant's character when he had neither been examined as a witness nor his character called in question by the nature of the action. On that state of facts in a civil case the defendant even will not be allowed to put in evidence his good character. Heilig v. Dumas, 65 N.C. 214; McRae v. Lilly, 23 N.C. 118. A fortiori the plaintiff could not introduce evidence of the defendant's bad character. In a criminal action in which necessarily the defendant's character is to a certain extent called in question, the defendant can put in evidence of his good character if he wishes, but, when he does not do so, the State cannot offer evidence of his bad (226) character unless he is examined as a witness in his own behalf, in which case the impeaching evidence is only allowed to go to his credibility as a witness, and is not allowed otherwise to affect the question of his guilt or innocence. S. v. Traylor, 121 N.C. 674.
The plaintiff was further allowed to ask the witness if he had not "heard that defendant had committed forgery"; also, "if he did not know that the defendant had been indicted for forgery." These questions would have been incompetent even upon the cross-examination of a witness put up by the other side to prove the defendant's good character. S. v. Bullard, 100 N.C. 486, and S. v. Hairston, 121 N.C. 579, in which the rules governing the examination of character witnesses are clearly stated and authorities cited.
There are other exceptions, but it is unnecessary to consider them as they may not arise on another trial.
Error.
Cited: S. v. Cloninger, 149 N.C. 579; S. v. Holly, 155 N.C. 493; Edwards v. Price, 162 N.C. 245; Lumber Co. v. Atkinson, ibid., 302; Walters v. Lumber Co., 165 N.C. 392.