#### STATE v. JAMES PAGE.

(Filed 22 March, 1939.)

1. Rape § 7 — Testimony that prosecutrix was widowed and was working to support herself and young son held irrelevant.

In a prosecution for rape the issue is whether defendant committed the act charged upon the prosecutrix, and her testimony tending to show that she was widowed and had accepted employment as a model in a show in order to support herself and young son when the crime was alleged to have been committed by a Negro follower of the show, is irrelevant, and since the testimony might have aroused sympathy for the prose-cutrix or prejudice against the defendant in the minds of the jurors, its admission must be held prejudicial.

2. Criminal I/aw § 81c—

The admission of irrelevant evidence is not necessarily prejudicial, but when the evidence may have the effect of creating prejudice against defendant or sympathy for the prosecutrix in the minds of the jurors, its admission must be held for reversible error, especially where defendant has been convicted for a capital crime.

Appeal by defendant from Cowper, J., at November Term, 1938, of Beaufort. New trial.

Tbe defendant was convicted of rape, and from a judgment of death by asphyxiation appealed to tbe Supreme Court, assigning errors.

Attorney-General McMullan and Assistant Aliorneys-General Bruton and Wattach for the State.

H. S. Ward, L. H. Ross, and W. B. Carter for defendant, appellant.

*334ScheNcic, J.

Tbe prosecutrix, Mary McGann, on ber direct examination and before any other witness bad testified, was allowed, over objection and exception of tbe defendant, to testify substantially tbat sbe now bad a living child born to ber after tbe death of ber husband, tbat sbe and ber husband were not divorced and were living together at tbe time of bis death, tbat sbe, tbe prosecutrix, bad a job in New Tort first as an usherette in a theatre and then in a fur factory making coats, tbat this last job was a seasonal one and expired in March, 1938, and tbat sbe got a job with a show in April following because there was no other work for ber to be bad in New York, and sbe bad to make a living for herself and ber one-year-and-eight-months-old son, who was then living with ber mother in Chicago; tbat sbe came to Washington, N. C., with tbe show and tbat ber act therein was posing as a model of famous paintings.

This evidence is irrelevant. “Tbe criterion of relevancy is whether or not tbe evidence adduced tends to cast any light upon tbe subject of tbe inquiry.” Wharton’s Criminal Evidence (11 Ed.), Vol. 1, par. 224, p. 268. “Tbe subject of inquiry” was whether rape bad been committed upon tbe prosecutrix by tbe defendant, and whether- sbe was widowed and bad herself and a young son to support, and for tbe reason work could not be bad in New York, sbe bad accepted employment by a show as a model cast no light upon this subject.

However, tbe mere irrelevancy of tbe testimony under consideration cannot be held for reversible error, and we are confronted with tbe question as to whether its admission was harmful and prejudicial. Under tbe facts and circumstances of this case we are constrained to answer in tbe affirmative, upon tbe theory tbat such testimony was calculated to warp tbe judgment of tbe jury by creating sympathy for tbe prosecutrix and exciting prejudice against tbe defendant.

Tbe prosecutrix is a young white woman, twenty-two years old, and was allowed to picture herself as being away from home, working in a show to support herself and infant son, and tbe defendant is a thirty-year-old Negro man, a follower of tbe show. It would take little under these circumstances to arouse in tbe minds of tbe jury sympathy for tbe prosecutrix and to excite therein prejudice against tbe accused, and we cannot but feel tbat tbe admission of tbe testimony assailed bad a tendency to and may have brought about such a result, and for tbat reason was prejudicial to tbe defendant.

In speaking of tbe result of tbe admission of irrelevant testimony, Smith, G. J., in S. v. Mikle, 81 N. C., 552, quotes Patton v. Porter, 48 N. C., 539, in reference to a civil case, as follows: “This was, of course, improper, and as tbe jury may have been misled, we think tbe plaintiffs *335are entitled to a venire de novo,” and adds, “Much more forcibly does the rule apply to a conviction of a capital crime, when the verdict may have resulted from the prejudicial effect of the evidence.”

In S. vZ. Jones, 93 N. C., 611, Ashe, J., in referring to the result of the admission in evidence, over objection, of writs of capias with the sheriff’s return “not to be found,” when there was no evidence that the defendant ever resided in the county to which the writs were issued, says: “We are of the opinion that the evidence was improperly admitted. It was no evidence of flight. It was therefore irrelevant, and may have exerted a prejudicial effect upon the minds of the jury, and when that is so, it is a ground for a new trial.”

“Evidence which is offered solely for the purpose of creating sympathy for the accused, or which is offered for the sole purpose of improperly appealing to the prejudice of the jury against the accused, should be excluded.” Wharton’s Criminal Evidence (11 Ed.), Yol. 1, par. 230, p. 214.

“The minds of the jurors should not be diverted from the precise questions in issue by the introduction into the case of collateral and irrelevant matters, especially such as are calculated to prejudice one of the parties and prevent a fair and impartial trial; and especially is this so where, as in this case, the defendant is charged with the commission of a fraud.” Shepherd v. Lumber Co., 166 N. C., 130.

“It is true that the trial judge should exclude evidence which is foreign to the issues, or insufficient for legitimate use, or illegal as tending only to excite passion, arouse prejudice, awaken the sympathy, or warp the judgment of the jury.” Dellinger v. Building Co., 187 N. C., 845; S. v. Galloway, 188 N. C., 416.

In a New York case wherein the defendant was on trial for murder, the wife of the deceased was allowed, over objection, to testify that she had sat at the crib and sung the infant child of the deceased to sleep on the night of the homicide, and the Court, in sustaining the objection and granting a new trial, says: “All this had no materiality upon the issues before the jury. The object of the State is clear. Although, doubtless, the result of ‘well intentioned though misguided zeal,’ it was an ‘unseemly and unsafe’ appeal to prejudice. Nor here can we overlook it as probably unheeded.” People v. Caruso, 246 N. Y., 437. See, also, Hutchins v. Hutchins, 98 N. Y., 56; Anderson v. Borne W. & O. R. R. Co., 54 N. Y., 334.

“Error in the admission of evidence which apparently affected the jury in their verdict is ground for reversal. ... So the admission of evidence which tends to distract the attention of the jury from the real issues in the case is harmful error and ground for reversal. Likewise, the admission of evidence which, although immaterial, tends to *336mislead the jury, or to provoke sympathy for the party offering the evidence, is ground for reversal, ...” 4 C. J., par. 2953, pp. 972-3-4. See, also, 5 C. J. S., Appeal and Error, par. 1724 (2), p. 971.

While there was other testimony and other evidence, the determinative question presented to the jury in the instant case was whether the facts were substantially as testified by the prosecutrix, or were substantially as testified by the defendant. The prosecutrix testified in effect that the rape was accomplished by the defendant in her tent by placing her in fear of her life if she resisted, and that the act of coiius extended continuously and uninterruptedly for a space of one hour and forty-five minutes to two hours. The defendant admitted that he was present in the tent of the prosecutrix at the time charged for the purpose of getting back money she had gotten from him, but denied that he had, or attempted to have, carnal knowledge of the prosecutrix. It cannot be said with assurance, under the facts and circumstances of this case, that the verdict of the jury was entirely free from the baneful influence of irrelevant and immaterial evidence, and for that reason there must be a

New trial.