#### STATE v. J. WALTER BROOM.

(Filed 25 November, 1942.)

1. Jury §§ 5, 13: Constitutional Law § 27—

In a prosecution for murder tbe action of tbe judge in discharging one of tbe jurors, upon finding be was incapacitated, and substituting the thirteenth juror in his stead, was timely and proper and in accordance with the statute. Public Laws 1931, ch. 103, as amended by Public Laws 1939, ch. 35.

2. Criminal Law §§ 29b, 41b, 41(1—

In a criminal case there is no error in permitting the prosecutor to ask the defendant, when on the stand as a witness, questions about collateral matters, including charges of other criminal offenses and degrading actions, for the purpose of impeaching his credibility, if the questions are based on information and asked in good faith; bfit upon denial by defendant, the State is bound by his answers and affirmative evidence, in contradiction of his denial, is incompetent.

3. Criminal Law §§ 41b, 41d—

During the cross-examination of the defendant, in a murder trial, the prosecution, for the purpose of impeaching his credibility, asked him if he had not been engaged in committing abortions on women, showing certain articles and instruments and also asking defendant, if they were not instruments used for producing abortions, all of which defendant denied, though admitting the ownership of some of tbe articles — the court then allowing the instruments to be offered in evidence. JHeld: Prejudicial error, and subsequent withdrawal of these exhibits comes too late.

Appeal by defendant from Burgwyn, Special Judge, at August Term, 1942, of MecicleNBURG.

New trial.

Tbe defendant was charged with murder in two cases. In the one he was indicted for the murder of Mrs. Euby Middlebrook, and in the other for the murder of Mrs. Eula Harkey. The two homicides occurred at the same time and place, and death resulted from gunshot wounds admittedly inflicted by the defendant. The defendant pleaded self-defense. By consent, the two cases were consolidated for trial.

The jury returned verdict of guilty of murder in the first degree in the case of Mrs. Middlebrook, and guilty of murder in the second degree in *325the case of Mrs. Harkey. From judgments imposing sentence of death in the one case, and thirty years in prison in the other, the defendant appealed.

Attorney-General McMullan and Assistant Attorneys-General Patton and Rhodes for the State.

Jake P. Newell and J. M. Scarborough for defendant.

DeviN, J.

The slaying by the defendant of the two women named in the bills of indictment, on the occasion alleged, was not controverted. The defendant on the stand admitted the shooting and killing of both, but pleaded self-defense in each ease. His counsel also offered evidence tending to show that the defendant was not mentally responsible at the time.

On his appeal to this Court the defendant assigns error in the denial by the trial judge of his motion for judgment of nonsuit as to the charge of first degree murder, but an examination of the record indicates the correctness of this ruling. Likewise, the action of the judge in discharging one of the jurors, upon finding he was incapacitated, and substituting the thirteenth juror in his stead on the panel, was timely and proper, and in accord with the statute. Ch. 103, Public Laws 1931, amended by ch. 35, Public Laws 1939. S. v. Dalton, 206 N. C., 507, 174 S. E., 422.

However, we think there was error in the ruling of the court as to the admission in evidence of certain exhibits in the case over the objection of the defendant.

During the cross-examination of the defendant, when he was on the stand as a witness in his own behalf, the solicitor, for the purpose of impeaching his credibility, asked him if he had not been' engaged in committing abortions on women, and obtaining money from such unlawful practices. This the defendant denied. Then the solicitor, showing certain articles and instruments, asked him if these were not instruments used for producing abortions. This the defendant also denied. The defendant admitted ownership or possession of some of the articles about which he was questioned, but denied that others were his. The instruments were then offered in evidence as State’s exhibits, and were admitted as such over the objection of the defendant. The defendant in apt time excepted.

There was no error in permitting the solicitor to ask the defendant, when on the stand as a witness, questions about collateral matters, including charges of. other criminal offenses and degrading actions, for the purpose of impeaching his credibility. This was permissible if the questions were based on information and asked in good faith, however damaging the suggestion created by the questions might be. But when *326tbe defendant denied tbe impeaching questions as to sucb collateral matters, and denied tbe commission of tbe acts about wbicb be was cross-examined, as well as tbe unlawful purpose of tbe articles, tbe State was bound by bis answers, and affirmative evidence in contradiction of bis denial was incompetent. Tbis evidence was improvidently and doubtless inadvertently admitted. It was in no way connected witb tbe crime with wbicb defendant ivas charged. S. v. Wilson, 217 N. C., 123, 7 S. E. (2d), 11.

Tbe trial judge subsequently, realizing tbe evidence afforded by these exhibits was not pertinent, withdrew tbis evidence from tbe consideration of the' jury, but we think tbis came too late. Some time bad elapsed, and in tbe meantime twelve other witnesses bad been examined. Tbe impression made upon tbe minds of tbe jurors by these exhibits thus presented could not then be removed. Gattis v. Kilgo, 131 N. C., 199, 42 S. E., 584; Parrott v. R. R., 140 N. C., 546, 53 S. E., 432; In re Will of Yelverton, 198 N. C., 746, 153 S. E., 319.

Tbe Attorney-General argued that, if there was error in the ruling of tbe court below in tbis matter, it was in any event harmless. But considering tbe nature of tbe case, tbe character of tbe defense, and tbe serious consequences to tbe defendant, we are unable to concur in that view. These articles, relating to collateral charges, were offered and admitted as tangible evidence to contradict tbe denial of tbe defendant and tended unduly to degrade and discredit him. S. v. Jordan, 207 N. C., 460, 177 S. E., 333.

We conclude that tbe evidence afforded by tbe exhibits was incompetent and that tbe error in admitting them was material and prejudicial, necessitating a

New trial.