{
  "id": 8651493,
  "name": "STATE v. J. FRANK SHOEMAKER",
  "name_abbreviation": "State v. Shoemaker",
  "decision_date": "1888-09",
  "docket_number": "",
  "first_page": "690",
  "last_page": "696",
  "citations": [
    {
      "type": "official",
      "cite": "101 N.C. 690"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "95 N. C., 323",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11274051
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/95/0323-01"
      ]
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    {
      "cite": "92 N. C., 831",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11275418
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/92/0831-01"
      ]
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  "last_updated": "2023-07-14T16:51:11.114152+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. J. FRANK SHOEMAKER."
    ],
    "opinions": [
      {
        "text": "Davis, J.\n(after stating the case.) 1. The admission of the testimony of the prosecutrix in regard to the conversation with ITunter, and what was said about the' spit with the Plummers, is the ground of the first exception. This evidence first -came out, without objection, upon the cross-examination of the witness by the defendant, and thereafter, Hunter, a .witness for the defendant, was examined in relation thereto without objection. We do not see how what was said in relation to the suit with the Plummers was in any way materia to or could affect the issue before the jury, and, if material upon the re examination of the witness, Annie McClure, it was rendered so by what was said by her without objection, on cross-examination, and by the contradiction thereof by the witness Hunter. In this aspect of the case she had a right to explain, and thereby corroborate her own testimony. State v. Whitfield, 92 N. C., 831. But if not competent for the purpose of explanation and corroboration, it was immaterial, and could in no way prejudice the defendant in the minds of the jury. The admission of immaterial evidence is not a ground for a new trial, unless it appears that its admission probably worked injury to the appellant. Waggoner v. Ball, 95 N. C., 323.\n2. There was no error in refusing to give the first part of the prayer for instructions asked by the defendant. The words spoken, as will be seen by reference to any dictionary, unquestionably \u201c amount to a charge of ineontinency,\u201d and if the witness Annie McClure is to be believed, she was a chaste woman, and the evidence as to her general reputation was competent to support her testimony. \u00abIt is insisted by counsel for defendant that the charge of his Honor is \u201cobnoxious to the objection that it violated the act of \u201996 in arraying the testimony against the defendant.\u201d It is stated that the Court recapitulated \u201c all the testimony in the case,\u201d and if any favorable to the defendant was omitted, attention should have been called to it by counsel.\nIt, is further insisted for the defendant that the \u201c legal entity \u201d of the wife being merged, \u201c husband and. wife are one person,\u201d and, therefore, words spoken by the husband in the presence of the wife ai;e protected, and \u201c assuming that the supposed defamatory words were spoken in the hearing of a third person,\u201d the wife is not such a person within the meaning of the law, and if she was such a third person the fact that she was \u201c a sjiort distance off\u201d is not sufficient to prove that she heard the defamatory words. We are unable to see the force of this objection. The words spoken were not of a gentle and confidential character, between husband and wife, but spoken in a loud tone which could have been heard a long way off, and besides, it appears from the testimony on behalf of the defendant that a negro woman was near, and that the witness John Lytle was in hearing, though he testified that the language used by the defendant was different from that charged by the prosecu-trix. There is no error in refusing to charge the jury as requested or in the charge as given.\nAffirmed.",
        "type": "majority",
        "author": "Davis, J."
      }
    ],
    "attorneys": [
      "Attorney General, for the State.",
      "Mr. W. H. Bailey (by brief), for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. J. FRANK SHOEMAKER.\nSlander of Innocent Woman \u2014 Evidence.\n1. A new trial will not be awarded upon the ground of the admission of irrelevant evidence, unless R is made to appear that the appellant was in some way prejudiced thereby.\n2. In an indictment under The Code, \u00a71113, for slandering an innocent woman, it is'sufficient if it is made to appear that the words used amounted to a charge of incontinency, and that they were uttered in the hearing of a third person.\n3. Galling an innocent woman \u201cad \u2014 d whore,'\u2019in a loud and angry manner, in the hearing alone of the wife of the speaker, is a charge of incontinency within the meaning of the statute.\nInpictmekt for slander of an innocent woman, tried before Meares, J., at October Term, 1888, of the Criminal Court of Mecklenburg- County.\nThe following is so much of the case on appeal as is necessary to present the grounds of the defendants exceptions : '\nRhe prosecutrix, one Mrs. Annie McClure, testified in substance, that the defendant was abusing and cursing his wife; that they (the defendant and his wife) were running towards her, and when within a short distance of where she was, about forty steps from the public road, the defendant halted and turned towards her and said: \u201c Yes, there is another \u2022d \u2014 d negro whore who will go to town to-morrow and get \u25a0out another warrant against me.\u201d That the defendant \u25a0cursed her and called her a whore. The language was in a loud tone of voice and could have been heard a long ways \u2022off. Defendant's wife was a short distance off. The prose-\u25a0cutrix also testified that she was an innocent woman and never had illicit intercourse with any man.\nOn the cross-examination the defendant\u2019s counsel asked \u2019.the witness \u201c if she did not tell one H. L. Hunter (when on a visit to her house at a certain time), while talking to him about this occurrence, that the defendant had called her a negro, and upon being told by said Hunter that it was not an indictable offence to call a woman a negro because it was not slander according to law, and she then told Hunter that the defendant had called her a whore;, and furthermore, in the same conversation with said Hunter, did she not speak of some former prosecutions against the defendant, J. F. Shoemaker, saying that her object was to drive him from the neighborhood, and saying: \u2018I think that we will down him this time f \u201d\nTo this interrogatory the prosecutrix answered that she \u201c had never had any such conversation with Hunter; that it was true, however, that Hunter did make a visit to .her house at that time, and that he tried to \u2018 pick \u2019 her and other members of the family about a suit which he had against the Plummers, and he talked a good deal about the suit and the Plummers, and advised us to break with the Plummers; but he said nothing in my hearing about this occurrence with the defendant, Shoemaker, although he might have talked about it to other members of the family without my hearing him. I deny that he had any such conversation with me.\u2019\nH. L. Hunter was introduced by the defendant, and testified that a few days prior to the August Term of the Court he visited the house where the prosecutrix, Annie McClure, lives, and that in a conversation between them, which was relative to this difficulty between her and the defendant, Shoemaker, she said to him that Shoemaker called her a negro, and the witness then told her that did not amount to slander and was not indictable, and she then said to the witness that the defendant had called her a whore. She went on to speak of some former prosecutions against the defendant which she said had failed, and then said \u201cshe thought they would down him this time, and she wanted to drive him out of the neighborhood.\u201d\nOn the cross examination the witness testified that he did have something to say about the Plummers in that same conversation with the prosecutrix, but he denied that he advised her to break with the Plummers, and that he had said they were a bad people.\nThe defendant himself and one John Lytle testified, and their evidence tended to contradict the prosecutrix.\nAfter the close of the defendant\u2019s testimony the State resumed the examination of witnesses, and recalled Mrs. Annie McClure, who testified that she did not have any conversation with the defendant\u2019s witness Hunter, at the time spoken of by him, or at any other time, relative to the difficulty between her and the defendant Shoemaker; that nothing was s'aid between them about the language which Shoemaker had applied to her. The Solicitor for the State then asked the witness what was the conversation between her and the witness Hunter at the same time and place about the Plummers. This question was objected to by the defendant\u2019s counsel, and admitted by the Court, and the defendant\u2019s counsel excepted. The witness answered, that in the conversation referred to, the witness Hunter tried to \u201c pick \u201d her with regard to a suit he had with the Plummers, and also that he advised her to break with the Plummers and cut their acquaintance, as(they were not proper persons to associate with.\nTwo witnesses testified that the character of the prosecu-trix, Mrs. Annie McClure, is good, and two witnesses testified that the character of the defendant Shoemaker is bad, and two -witnesses testified that the character of the witness H\u201e I). Hunter is good.\nThe following prayer for instruction was offered and asked for by the defendant\u2019s counsel, viz.: \u201c That even talcing the testimony of all the State\u2019s witnesses to he true, no case has been proved within the meaning of the statute, and that the defendant is entitled to an acquittal; that, in order to make a case, it must be shown that the language must have been heard by some third person.\u201d\nThis prayer for instruction, taken as a whole, was refused by the Court, although the defendant was given the benefit of the concluding proposition of the prayer; that is to say, that the language used by the defendant must have been heard by some third person in order to constitute a case of guilt.\nThe counsel for the defendant excepted to this ruling of the Court.\nThe Court instructed the jury on the law (in substance), that the statute controlling this case was intended for the protection of innocent females only; that an' innocent woman, within the purview of the statute, is a woman who has never had illicit sexual intercourse with a man; that it devolved upon the State to establish the fact of the innocency of the woman whose character is alleged to have been slandered by the defendant to the satisfaction of the jury and beyond any reasonable doubt. (The Court here recapitulated the testimony in the case bearing upon the character of Mrs. Annie McClure, the prosecutrix.) The Court furthermore instructed the jury that the language charged, or alleged to have been used by the defendant in this and all similar cases, must be such as to amount to a charge of inconiinency.\nThe Court, after recapitulating all the testimony in the case, instructed the jury that if \u201c they were convinced beyond a reasonable doubt that the prosecutrix is aninnocent woman, and furthermore that the prosecutrix bad-sworn to the truth; that at the time and place described by her the defendant had called her a \u00a3 damned negro whore? in the presence of a third person (his wife), that this language amounted to a charge of incontinency, and they ought to convict the defendant; but that the jury must be satisfied beyond a reasonable doubt on both of these issues before they could convict. Is the prosecutrix an innocent woman? If so, did the defendant call her a damned negro whore, as she has testified? That the defendant had testified that he did not say anything of an insulting nature on the occasion in question to the prosecutrix, but that he did answer back to a negro woman (as he supposed) that she was a ' damned black bitch.\u2019\nHe denies this charge.\nThe defendant is an interested witness. The law does not say, however, that an interested witness must not be believed, but it does say that the jury must scrutinize his testimony with greater severity, for the reason that he is an interested witness, than they would otherwise do;, that being an interested witness his testimony does not stand on the same high and unsuspicious level or plane where otherwise it might stand.\u201d\nOn motion of defendant\u2019s counsel, a motion for a venire de novo was entered.\nThe counsel for the defendant submitted a motion for a new trial, based upon the following reasons, viz :\n1. Because the Court erred in admitting the testimony of the State\u2019s witness, Annie McClure, in that she was allowed to state the conversation which was held between her and the defendant\u2019s witness, H. L. Hunter, (as she alleges) relative to cutting the acquaintance of and breaking off with the Plummer family, which -was objected to by the defendant\u2019s counsel.\n2. Because the pourt erred in refusing the prayer for instruction as hereinbefore set forth and offered by the defendant\u2019s counsel; and because of the erroneous charge as given by the Court.\nThere was a verdict of guilty, judgment, and appeal by the defendant.\nAttorney General, for the State.\nMr. W. H. Bailey (by brief), for the defendant."
  },
  "file_name": "0690-01",
  "first_page_order": 722,
  "last_page_order": 728
}