{ "id": 8552933, "name": "STATE OF NORTH CAROLINA v. DONNY D. SCOTT", "name_abbreviation": "State v. Scott", "decision_date": "1972-11-22", "docket_number": "No. 7226SC795", "first_page": "551", "last_page": "555", "citations": [ { "type": "official", "cite": "16 N.C. App. 551" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "108 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "250 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623209 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/250/0363-01" ] }, { "cite": "187 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "50" } ], "opinion_index": 0 }, { "cite": "280 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573124 ], "pin_cites": [ { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0633-01" ] } ], "analysis": { "cardinality": 526, "char_count": 9608, "ocr_confidence": 0.546, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2059515825053893 }, "sha256": "9dd9b7ed4e5473f332de341f414bf3c5b6243f2cc5060df12bcd9f09fc85abd1", "simhash": "1:d713440b71b8ef23", "word_count": 1603 }, "last_updated": "2023-07-14T16:27:31.279819+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Morris concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DONNY D. SCOTT" ], "opinions": [ { "text": "PARKER, Judge.\nOn cross-examination of defendant\u2019s witness, Clow, the solicitor asked the following question and received the following answer:\nQuestion: \u201cAll right. Mr. Clow, on the morning of June 10th, 1971, between eight and 9:45 in the morning, weren\u2019t you in the backyard of Mrs. Saunders\u2019 home on Eastfield Road?\u201d\nAnswer: \u201cNo, sir. I don\u2019t even know her.\u201d\nIn rebuttal, the State called Mrs. J. R. Saunders, who testified that she lived on Eastfield Road, that the Zeiglers lived about three-fourths of a mile further down the road, and the Scotts lived at approximately the same location. Over defendant\u2019s objections Mrs. Saunders was permitted to testify that about 9:45 a.m. on 10 June 1971 she observed defendant\u2019s witness, Donald Clow, and another person, who was not identified, in the backyard of her home trying to lift a motor from her husband\u2019s boat, she screamed, and Clow and the other person ran away. The admission of this testimony is the basis of defendant\u2019s only assignment of error. This assignment of error must be sustained.\n\u201cIt is a general rule of evidence in North Carolina \u2018that answers made by a witness to collateral questions on cross-examination are conclusive, and that the party who draws out such answers will not be permitted to contradict them; which rule is subject to two exceptions, first, where the question put to the witness on cross-examination tends to connect him directly with the cause or the parties, and second, where the cross-examination is as to a matter tending to show motive, temper, disposition, conduct, or interest of the witness toward the cause or parties.\u2019 \u201d State v. Long, 280 N.C. 633, 639, 187 S.E. 2d 47, 50.\n\u201cThe principal reasons of the rule are, undoubtedly, that but for its enforcement the issues in a cause would be multiplied indefinitely, the real merits of the controversy would be lost sight of in the mass of testimony to immaterial points, the minds of jurors would thus be perplexed and confused, and their attention wearied and distracted, the costs of litigation would be enormously increased, and judicial investigation would become almost interminable.\u201d 58 Am. Jur., Witnesses, \u00a7 784, p. 433.\nThe proper test for determining what is material and what is collateral is whether the evidence offered in contradiction would be admissible if tendered for some purpose other than mere contradiction; or in the case of prior inconsistent statements, whether evidence of the facts stated would be so admissible. State v. Long, supra; State v. Taylor, 250 N.C. 363, 108 S.E. 2d 629; 3A Wigmore, Evidence, \u00a7\u00a7 1003, 1020 (Chadbourn rev. 1970); 58 Am. Jur., Witnesses, \u00a7 785.\nIn the case now before us, had Mrs. Saunders\u2019 testimony that she saw Clow in her backyard on the morning of 10 June 1971 placed him at such a distance as to make it unlikely that he could have been with defendant later that day during the time and at the places defendant and Clow testified they were together, such testimony would have tended directly to rebut defendant\u2019s alibi and would have been admissible for that purpose. All of the evidence, however, indicates that the home of Mrs. Saunders was sufficiently near to all places relevant to this case that the fact that Clow may have been in her backyard at 9:45 in the morning in no way tends to show that he could not also have been in defendant\u2019s company later in the day at all of the places and times they testified they were together. Therefore, Mrs. Saunders\u2019 testimony in no way tended to rebut defendant\u2019s alibi defense and its only purpose was to contradict Clow\u2019s denial that he had been in her yard. This was clearly a collateral matter and one which in no way tended to connect Clow with the defendant or with the State\u2019s case against the defendant, nor did it in any way tend to show Clow\u2019s \u201cmotive, temper, disposition, conduct, or interest toward the cause or parties.\u201d\nEvidence that Clow attempted to steal a motor from the boat in Mrs. Saunders\u2019 backyard certainly reflected upon his good character, but as a witness his character was only collaterally in issue. While the solicitor was free to cross-examine him in an attempt to show his bad character, his answer on cross-examination was conclusive and could not be contradicted by other testimony. Stansbury, N. C. Evidence 2d, \u00a7 111, p. 254. \u201cThus, if the witness denies the alleged misconduct, the examiner must \u2018take his answer,\u2019 not in the sense that he may not further cross-examine to extort an admission, but in the sense that he may not call other witnesses to prove the discrediting acts.\u201d McCormick, Handbook of the Law of Evidence,\u201d \u00a7 42, p. 89.\nIn this case the trial court committed error in overruling defendant\u2019s timely objections and motions to strike Mrs. Saunders\u2019 testimony concerning her observations of defendant\u2019s witness Clow.\nFor the error noted, defendant is entitled to a\nNew trial.\nJudges Campbell and Morris concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Attorney General Robert Morgan by Associate Attorney George W. Boylan for the State.", "Cole & Chesson by Calvin W. Chesson for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DONNY D. SCOTT\nNo. 7226SC795\n(Filed 22 November 1972)\n1. Criminal Law \u00a7 88; Witnesses \u00a7 8\u2014 contradiction of answers elicited on cross-examination \u2014 collateral matters\nIt is a general rule of evidence in this State that answers made by a witness to collateral questions on cross-examination are conclusive, and that the party who draws out such answers will not be permitted to contradict them except to connect the witness with the cause or the parties or to show motive or disposition of the witness toward the cause or the parties.\n2. Criminal Law \u00a7 88; Witnesses \u00a7 8 \u2014 cross-examination \u2014 contradictory evidence \u2014 collateral matters \u2014 test\nThe proper test for determining what is material and. what is collateral is whether the evidence offered in contradiction would be admissible if tendered for some purpose other than mere contradiction.\n3. Criminal Law \u00a7 88; Witnesses \u00a7 8 \u2014 cross-examination \u2014 contradictory evidence improperly admitted\nWhere a witness\u2019s testimony concerning her observations of defendant\u2019s witness Clow in her backyard served only to contradict Clow\u2019s denial on cross-examination that he had been there, the trial court erred in allowing the witness to testify since Clow\u2019s presence or absence in the witness\u2019s yard clearly involved a collateral matter.\nAppeal by defendant from Friday, Judge, 15 May 1972 Schedule B Criminal Session of Superior Court held in MECK-LENBURG County.\nBy indictment proper in form defendant was charged with (1) the felonious breaking and entering on 10 June 1971 of a particularly described premises occupied by one Willie Daniel Hartsell and (2) the felonious larceny after such breaking and entering of a color television set. The State presented the testimony of Willie D. Hartsell, who testified that he left his house on the Huntersville-Mount Holly Highway about 6:40 a.m. on 10 June 1971 and that when he returned about 4:30 p.m. he found his house had been broken into and his color television set valued at $600.00 was missing. The State then presented the testimony of Danny Reid Zeigler, who testified in substance to the following: Zeigler and defendant are first cousins. On 10 June 1971 Zeigler lived with his parents on Eastfield Road in the northern part of Mecklenburg County. It is approximately nine miles from Mr. HartselPs house to where Zeigler was living. Defendant\u2019s parents lived on the same road about half a block away. About 10:00 or 11:00 a.m. on 10 June 1971 Zeigler and defendant went to defendant\u2019s mother\u2019s house and borrowed her car to go fishing. They arrived at a pond off of Huntersville-Mount Holly Road about noon. After fishing two or three hours they drove up the road looking for a house to break in. Between 3:00 and 4:00 p.m. they broke into the Hart-sell residence and stole the television set, carrying it away in the automobile. Later that afternoon they sold the television for $100.00, which they split. On cross-examination Zeigler testified that he knew Donald Clow but did not see him at the pond that day.\nDefendant testified to the following: About 10:30 a.m. on the day in question Zeigler had come to his trailer and asked him to go fishing. Defendant told Zeigler to go ahead and he would meet him at the pond. After Zeigler left, defendant went to his mother\u2019s home and borrowed her car. He then drove to Derrick\u2019s Trailer Park, where he picked up a friend, Donald Clow, about 11:30. Defendant and Clow then drove to the pond, where they found Zeigler already fishing. About 1:00 p.m. Zeigler asked defendant if he could borrow defendant\u2019s mother\u2019s car, as he wanted to go get more fishing bait and his own car was not running good. Defendant told him he could, whereupon Zeigler left in defendant\u2019s mother\u2019s car and did not return until after 4:00 p.m. They continued fishing twenty or thirty more minutes, and then defendant drove Clow home. Zeigler left about ten or fifteen minutes before they did. Clow was with defendant the entire time Zeigler was gone.\nClow, called as a witness by the defense, corroborated defendant\u2019s testimony.\nThe jury found defendant guilty as charged in the bill of indictment. On the verdict finding defendant guilty of felonious breaking and entering, judgment was entered sentencing defendant to prison for a period of not less than five nor more than seven years. On the verdict finding defendant guilty of larceny, prayer for judgment was continued from term to term for a period of five years. From the judgment imposing the prison sentence, defendant appealed.\nAttorney General Robert Morgan by Associate Attorney George W. Boylan for the State.\nCole & Chesson by Calvin W. Chesson for defendant appellant." }, "file_name": "0551-01", "first_page_order": 575, "last_page_order": 579 }