{ "id": 8575405, "name": "STATE OF NORTH CAROLINA v. SAMUEL AUSTIN, ALIAS SAMUEL BROWN", "name_abbreviation": "State v. Austin", "decision_date": "1980-03-05", "docket_number": "No. 27", "first_page": "537", "last_page": "540", "citations": [ { "type": "official", "cite": "299 N.C. 537" } ], "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": "429 U.S. 932", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7686, 5955, 6294, 7343 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/429/0932-03", "/us/429/0932-04", "/us/429/0932-01", "/us/429/0932-02" ] }, { "cite": "225 S.E. 2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560849 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0236-01" ] }, { "cite": "79 S.E. 2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "239 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626407 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/239/0245-01" ] }, { "cite": "215 S.E. 2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "145" } ], "opinion_index": 0 }, { "cite": "287 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564055 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "510" }, { "page": "512-513" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0505-01" ] }, { "cite": "195 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558331 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0218-01" ] } ], "analysis": { "cardinality": 427, "char_count": 7436, "ocr_confidence": 0.827, "pagerank": { "raw": 1.0896548945317178e-07, "percentile": 0.5653339248736123 }, "sha256": "3c00381faa385c851ce7712328f5a3cb80272edb849f784c0e3d7e1f0f19ac8e", "simhash": "1:a46e670bc06eea57", "word_count": 1231 }, "last_updated": "2023-07-14T21:53:45.777487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. SAMUEL AUSTIN, ALIAS SAMUEL BROWN" ], "opinions": [ { "text": "BRITT, Justice.\nThis opinion does not set forth the usual summary of evidence presented at trial for the reason that the record on appeal does not contain the evidence presented.\nDefendant states the first of his two assignments of error thusly: \u201c. . . the trial court erred in failing to grant the defendant\u2019s motion to declare Angela Oglesby a hostile witness, prohibiting the defendant from impeaching her testimony, and thus the state\u2019s other witnesses, by showing prior inconsistent statements.\u201d The assignment has no merit.\nWhile the record does not clearly disclose what defendant was attempting to show with respect to Angela Oglesby\u2019s testimony, we glean the following: Angela is the eight-year-old daughter of Priscilla Oglesby whose home defendant was charged with burglarizing. Priscilla and other occupants of the home, except Angela, testified as witnesses for the state relative to occurrences on the night in question. Defendant had information to the effect that previous to the trial Angela had made statements to several persons which were at variance with testimony given by her mother and other members of the family. After the state had rested its case, defendant moved that he be allowed to present Angela as a hostile witness, cross-examine her and present other witnesses to contradict her.\nIn passing on defendant\u2019s motion in the absence of the jury, the court permitted defendant to examine Angela. She gave testimony which apparently was similar to that given by her mother and other state\u2019s witnesses. She denied that she had told anyone that \u201cthere was no one in my house that night\u201d. The court denied defendant\u2019s motion to declare Angela a hostile witness.\nDefendant recognizes that prior to the enactment of the Rules of Civil Procedure, G.S. 1A-1 et seq., effective 1 January 1970, the general rule was that a party could not impeach his own witness. He argues that the rule was changed in civil cases by G.S. 1A-1, Rule 43(b), and that the change should also apply to criminal cases.\nIn several cases decided since the effective date of the Rules of Civil Procedure, this court has refused to change the rule in criminal cases. In State v. Anderson, 283 N.C. 218, 224, 195 S.E. 2d 561 (1973), Justice (later Chief Justice) Sharp, speaking for the court, said:\nUntil changed by statute applicable to civil cases (G.S. 1A-1, Rule 43(b) (1969)), it was established law in this State that a party could not impeach his own witness in either a civil or a criminal case. 1 Stansbury, North Carolina Evidence \u00a7 40 (Brandis rev. 1973). See also McCormick, Evidence \u00a7 38 (Cleary Ed., 2d ed. 1972); 3A Wigmore, Evidence \u00a7\u00a7 896-905 (Chadbourn rev. 1970). This rule, unchanged as to criminal cases, still precludes the solicitor from discrediting a State\u2019s witness by evidence that his general character is bad or that the witness had made prior statements inconsistent with or contradictory of his testimony. . . .\nIn State v. Pope, 287 N.C. 505, 510, 215 S.E. 2d 139 (1975), Chief Justice Sharp, speaking for the court, said:\nIt remains the general rule in this jurisdiction that the solicitor (or district attorney) may not impeach a State\u2019s witness by evidence that the character of the witness is bad or that he has made prior statements inconsistent with or contradictory of his testimony. State v. Anderson, 283 N.C. 218, 195 S.E. 2d 561 (1973); State v. Tilley, 239 N.C. 245, 79 S.E. 2d 473 (1954); see 1 Stansbury\u2019s North Carolina Evidence (Brandis Rev., 1973) \u00a7 40.\nSee also State v. Peplinski, 290 N.C. 236, 225 S.E. 2d 568, cert. denied, 429 U.S. 932 (1976).\nWhile the cited cases pertained to efforts by the district attorney to impeach state\u2019s witnesses, we see no reason why efforts by a defendant to impeach his witnesses should be treated differently.\nAlso in State v. Pope, supra, Chief Justice Sharp discussed the recognized exception or corollary to the anti-impeachment rule which allows impeachment \u201cwhere the party calling the witness has been misled and surprised or entrapped to his prejudice\u201d, citing substantial authority. The Chief Justice went on to say that even then the motion to be allowed to impeach one\u2019s own witness by proof of his prior inconsistent statements is addressed to the sound discretion of the trial court. State v. Pope, 287 N.C. at 512-513, 215 S.E. 2d at 145.\nClearly defendant\u2019s complaint here would not come under the quoted exception or corollary as he was not misled and surprised or entrapped to his prejudice by Angela\u2019s testimony. Defendant obviously knew before he was given the opportunity to present evidence what Angela would testify to and, as shown above, the court permitted him to examine the witness in the absence of the jury before making a decision as to whether he would present her.\nIn his other assignment of error, defendant contends the trial court erred in giving the following instruction to the jury:\n\u201cThe defendant has been accused of burglary in the first degree, which is the breaking and entering of the occupied dwelling of another without his or her consent in the nighttime. In this case, without the intent to commit the felony of larceny within the particular dwelling house, that of Priscilla Oglesby.\u201d (Emphasis added.)\nOn 21 December 1979 the Attorney General filed a motion in this court asking that the record be corrected to substitute the word \u201cwith\u201d for the word \u201cwithout\u201d in that portion of the jury charge set out above. The motion was accompanied by an affidavit from the court reporter stating that the word \u201cwithout\u201d was inadvertently used in transcribing the jury charge and that the word \u201cwith\u201d was actually used by the trial court. The reporter\u2019s affidavit was accompanied by a reproduced copy of her stenotype notes.\nWe allowed the Attorney General\u2019s motion on 8 January 1980, consequently, there is no merit in the assignment.\nIn defendant\u2019s trial and the judgment entered, we find\nNo error.", "type": "majority", "author": "BRITT, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Assistant Attorney General Donald W. Stephens, for the State.", "Robert F. McLaughlin for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SAMUEL AUSTIN, ALIAS SAMUEL BROWN\nNo. 27\n(Filed 5 March 1980)\n1. Criminal Law \u00a7 90\u2014 defense witness not declared hostile \u2014 no error\nThe trial court did not err in failing to grant defendant\u2019s motion to declare his witness a hostile witness where defendant was not misled, surprised or entrapped to his prejudice by the witness\u2019s testimony, and he knew before he was given the opportunity to present evidence what the witness would testify to.\n2. Criminal Law \u00a7 160\u2014 correction of record\nThere was no merit to defendant\u2019s contention that the trial court, in instructing on the elements of first degree burglary, erroneously stated that defendant entered the victim\u2019s home \u201cwithout\u201d the intent to commit a felony therein, since the record had been corrected, upon proper affidavit, to read \u201cwith\u201d instead of \u201cwithout\u201d and thus properly reflected what the trial judge actually said.\nAPPEAL by defendant from Kivett, J., 29 May 1979 Session of ROWAN Superior Court.\nUpon a plea of not guilty, defendant was tried on a bill of indictment, proper in form, charging him with the first-degree burglary of the dwelling house of Priscilla Oglesby between the hours of 1:00 a.m. and 2:00 a.m. on 29 October 1978. The jury returned a verdict finding defendant guilty of first-degree burglary, and defendant appeals from judgment imposing a life sentence.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Donald W. Stephens, for the State.\nRobert F. McLaughlin for defendant-appellant." }, "file_name": "0537-01", "first_page_order": 561, "last_page_order": 564 }