Gardner, O. Max, Jr.

English

University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 28 | Number 1 Article 2112-1-1949Evidence -- Criminal Prosecutions -- RuleExcluding Other CrimesO. Max Gardner Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationO. M. Gardner Jr., Evidence -- Criminal Prosecutions -- Rule Excluding Other Crimes, 28 N.C. L. Rev. 124 (1949).Available at: http://scholarship.law.unc.edu/nclr/vol28/iss1/21124 NORTH CAROLINA LAW REVIEW [Vol. 28Evidence-Criminal Prosecutions-Rule Excluding Other CrimesDefendant was indicted for murder. Evidence was admitted, overobjection, that the defendant had confessed that he was an escaped pris-oner from the South Carolina Penitentiary where he was under lifesentence for murder. The trial judge charged the jury to consider suchevidence only as it might bear on the motive and intent of the defendantin relation to the alleged killing. The defendant offered no evidence.Upon conviction and appeal, held, error to admit such evidence because"the record is barren of any evidence to connect the offense chargedwith the defendant's past criminal record"; judgment reversed, caseremanded for new trial.1 State v. Kelly,2 where evidence of previousescape was held properly admitted, was expressly modified although thecourt suggested that "distinguishing differences" existed.3In the principal case the court states the rule excluding evidence ofother crimes or acts of misconduct in criminal prosecution as a broadrule of exclusion4 with certain "well recognized" exceptions.5 The ex-ceptions, upon close analysis, prove to be the criteria in the determinationof the relevancy of the previous offense to the offense charged; that is,design or plan, knowledge or belief, intent, motive, identity, or otheracts which are an inseparable part of the whole deed." The basic ruleof relevancy favors the admissibility of all facts affording any reason-able inference to the act charged with the exception of the characterrule which excludes conduct tending and offered to show bad moralcharacter or disposition. 7 Obviously, the court has inverted the criteriaof relevancy through which the basic rule operates into categories ofexceptions to a broad rule of exclusion. In place of the inquiry, "Isthis evidence relevant otherwise than merely through propensity (to1 State v. Fowler, 230 N. C. 470, 53 S. E. 2d 853 (1949). The State contendedthat this evidence shows or reasonably infers that defendant's motive was his fearthat the deceased knew about his escape from the South Carolina prison. SeeBrief for the State-Appellee, p. 6. On second trial, defendant's plea of guilty toaccessory before the fact was accepted by State. Minute Docket 30, p. 405,August 1949 Criminal Term of the Superior Court of Moore County.2216 N. C. 627, 6 S. E. 2d 533 (1940). See note 15 post.' State v. Fowler, 230 N. C. 470, 475, 53 S. E. 2d 853, 857 (1949)." "We start with the general rule that evidence of one offense is inadmissibleto prove another and independent crime, the two being wholly disconnected andin no way related to each other." Id. at 473, 53 S. E. 2d at 855.' "To this general rule, however, there is the exception as well established asthe rule itself, that proof of the commission of other like offenses is competent toshow the quo animo, intent, design, guilty knowledge or scienter, or to make outthe res gestae, or to exhibit a chain of circumstances in respect of the matter ontrial, when such crimes are so connected with the offense charged as to throwlight upon one or more of these questions." Ibid.'1 WIGmORE, EvIDENCE §§217, 218 (3d ed. 1940). The six criteria listed inthe text are the most common ones; for others, see ibid. See also STANSBURY,NORTH CAROLINA EVIDENCE §92 n. 62 (1946 ed.)." 1 WIGMORE, EVIDEN C §§10, 194, 216 (3d ed. 1940).1949] NOTES AND COMMENTS 125commit a similar crime) ?" there is substituted the inquiry, "Does thisevidence fall within any exceptions to the rule of exclusion?" In sodoing, the court's statement of the rule has, in the past, tempted judgesto dispense altogether with the test of relevancy, even though the ques-tion still must be asked under the latter inquiry, "Is the evidence offeredrelevant to show intent, etc. ?"8 The resulting confusion has admittedlybeclouded the rule itself by making its application more difficult anduncertain.9 The premise upon which the rule was founded is directedtoward the prevention of proof of guilt by proof of propensity to com-mit similar crimes.' 0 Yet this very object of the rule excluding evi-dence of similar crimes in criminal prosecutions when relevant merelyto show propensity is forgotten and the test of relevancy is by-passedwhen courts pay too close attention to the list of exceptions." Thecourts are prone to use the categorical exceptions as catch-alls whereit is felt that substantial justice has been accomplished in the light ofthe accused's character: "He's a bad character anyway !" Such a dis-position on the part of the courts is assuredly not in accord with whathas been called one of the distinguishing features of the Anglo-Americancriminal law-the recognition and avoidance of the deep tendency ofhuman nature to punish, not because the victim is guilty of the crimecharged, but because he is a bad man, and may as well be condemnednow that he is caught.12Although Mr. Chief Justice Stacy, in the principal case, formulatesthe rule of exclusion in its troublesome context, he has rendered a dis-tinguished service toward the clarification of the confusion that existedin the application of the rule by recalling that, "The exception requiresa more relevant base than the mere disposition of the accused to commitsuch crimes. . . . The touchstone is logical relevancy as distinguishedfrom certain distraction.' 3  Thus, he reinstates the principles ofrelevancy and the doctrines of auxiliary policy14 in the rule excludingevidence of other crimes offered in criminal prosecutions in NorthCarolina.At the same time he recognizes with admirable frankness that anumber of North Carolina cases have been inconsistent in the applica-tion of the rule. The four cases' 5 selected by the Chief Justice for this'Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 HARV.L. REv. 988, 1005 (1938).' Ibid.; State v. Fowler, 230 N. C. 470, 473, 53 S. E. 2d 853, 855 (1949).10 1 WIGMORE, EVIDENCE §194 (3d ed. 1940)." Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 HAgv.L. REV. 988, 1006 (1938)."1 WIGMORE, EVIDENCE §§57, 194 (3d ed. 1940).13 State v. Fowler, 230 N. C. 470, 473, 53 S. E. 2d 853, 855 (1949).142 WIGMoRE, EVIDENCE §1906 (3d ed. 1940)." State v. Edwards, 224 N. C. 527. 31 S. E. 2d 516 (1944) (defendant chargedwith incest and carnal knowledge of his daughter; evidence that defendant had126 NORTH CAROLINA LAW REVIEW [Vol.28criticism are striking reminders of that jurisprudential reasoning whichblindly applies the exceptions to a broad rule of exclusion as thoughthe exceptions were nothing more than well worn cliches used to cloakthe particular court's personal estimate of the defendant. Relevancy isignored; the object of the rule defeated.Approximately seventy cases in North Carolina have involved therule excluding evidence of other crimes in criminal prosecution; of thatnumber fifty-two cases admitted the evidence and eighteen cases heldthe evidence inadmissible.' 6 One might wish that the Chief Justice hadmentioned several other North Carolina decisions that confuse the pic-made improper advance of a similar nature to older daughter on prior occasionsadmitted by trial court to show "intent or guilty knowledge"; affirmed by SupremeCourt as evidencing "intent as well as the unnatural lust of the defendant in at-tempting to commit the crimes charged in the bill" [emphasis supplied]; State v.*Biggs, 224 N. C. 722, 32 S. E. 2d 352 (1944) (defendants charged with murderin commission of robbery; evidence tending to show that the three defendants ona date twenty-seven days after the homicide perpetrated a hold-up and robberyin same manner and same method as used in first robbery admitted by trial courton the question of "intent, guilty knowledge and identification"; affirmed by SupremeCourt as "competent for the purpose to which limited ... to show the identityof the persons . . ."; evidence of an attempt of one of the defendants to escapefrom jail while awaiting trial was admitted by trial court and not questioned bySupreme Court) ; State v. Kelly, 216 N. C. 627, 6 S. E. 2d 533 (1940) (defendantscharged with murder in commission of robbery; evidence that one of the defend-ants was an escaped prisoner and that he had escaped with a co-conspirator killedin the robbery admitted by trial court and approved by Supreme Court to "showquo anino, intent, design, or guilty knowledge.. .") ; State v. Flowers, 211 N. C.721, 192 S. E. 110 (1937) (defendants charged with conspiracy to rob by meansof assault with firearms; evidence that a week after the alleged robbery thestate's witness and defendant conspired to burn and did burn an automobile todefraud insurance company admitted by trial court to "show identity or guiltyknowledge"; affirmed by Supreme Court without specifying which exception torule of exclusion applicable).16 The following cases represent decisions applying the rule of exclusion inNorth Carolina and supplement those cases cited in Note, 16 N. C. L. REv. 24(1937) :A. Evidence held inadmissible:State v. Choate, 228 N. C. 491, 46 S. E. 2d 476 (1948) (abortion and murder;evidence tending to show commission by defendant of other distinct and independentoffenses of similar nature admitted originally by trial judge but subsequently juryinstructed to disregard; reversible error); State v. Godwin, 224 N. C. 846, 32S. E. 2d 609 (1945) (conspiracy to murder; evidence: defendant's profane com-ments on previous fire); State v. Wilson, 217 N. C. 123, 7 S. E. 2d 11 (1940)(embezzlement; evidence: statements by judge and foreman of grand jury sug-gesting irregularities in public guardianship account and order of court removingdefendant as public guardian on grounds of mismanagement); State v. Lee, 211N. C. 326, 190 S. E. 234 (1937) (maliciously burning a barn; evidence: indictmentof defendant on previous occasion for assault with a deadly weapon).B. Evidence held admissible:State v. Davis, 229 N. C. 386, 50 S. E. 2d 37 (1948) (fornication and adultery;evidence: similar attempts on another person) ; State v. Biggs, 224 N. C. 722, 32S. E. 2d 352 (1944) (facts stated in note 15 supra) ; State v. Edwards, 224 N. C.527, 31 S. E. 2d 516 (1944) (facts stated in note 15 supra) ; State v. Harris, 223N. C. 697, 28 S. E. 2d 232 (1947) (murder; evidence: that defendant shot andkilled three people at same place in a matter of seconds); State v. Batson, 220N. C 411, 17 S. E. 2d 511, 139 A. L. R. 614 (1941) (attempt to commit barratry;evidence: testimony that defendant had urged others to enter into suits) ; Statev. Kelly, 216 N. C. 627, 6 S. E. 2d 533 (1940) (facts stated in note 15 mspra);NOTES AND COMMENTSture and becloud the application of the broad rule of exclusion ;17 butan even more commendable desire is that the principal case may be usedas a precedent for the reaffirmation in principle of the basic rule favor-ing the admissibility of all relevant facts, with the character rule ex-ception, unhampered by the illogical and inconsistent applications of theso-called exceptions to a broad rule of exclusion. The result wouldmerely be the adaptation of the court's understanding of the presentphraseology of the rule of exclusion to that statement of the basic rulealready accepted by many state courts,' 8 the federal courts,19 the ModelCode of Evidence20 and by leading text-writers on evidence :21"Evidence of other offenses is inadmissible if its only rele-vancy is to show the character of the accused or his dispositionto commit an offense of the nature of the one charged; but if ittends to prove any other relevant fact it will not be excludedmerely because it also shows him to have been guilty of an inde-penden crime. '220. MAX GARDNER, JR.State v. Payne, 213 N. C. 719, 197 S. E. 573 (1938) (murder of highway patrol-man in process of escaping from him; evidence: subsequent escapes by defendantsfrom highway patrolmen involving a shooting duel, weapons taken from defend-ant's car 4Y2 months after murder exhibited to jury piece by piece) ; State v. Smoak,213 N. C. 79, 195 S. E. 72 (1938) (murder of daughter by strychnine poisoning;evidence: insurance on life of daughter, defendant had insured lives of first andsecond wives successively and had collected insurance after second wife died ofstrychnine poisoning, first wife in last illness stated in defendant's presence thatshe had been poisoned, a third person upon whose life defendant had taken out in-surance policy had serious but not fatal attack of strychnine poisoning) ; State v.Flowers, 211 N. C. 721, 192 S. E. 110 (1937) (facts stated in note 15 supra);State v. O'Higgins, 178 N. C. 708, 100 S. E. 438 (1919) (elopement with marriedwoman; evidence: abandonment of motherless child by defendant to elope withwoman); State v. Wade, 169 N. C. 306, 84 S. E. 768 (1915) (fornication andadultery; evidence: previous sexual intercourse); State v. Broadway, 157 N. C.598, 72 S. E. 987 (1911) (incest; evidence: other acts of intercourse); State v.White, 89 N. C. 462 (1883) (larceny of hogs; evidence: neighbors of defendantlost hogs about same time that defendant had sold dressed hogs, defendant haddenied and admitted the sale in same conversation).7 E.g., State v. Davis, 229 N. C. 386, 50 S. E. 2d 37 (1948) (fornication andadultery; evidence: testimony of another child in orphanage of which defendantwas superintendent that he had made similar attempts on her admitted by trialcourt to show "attitude, animus and purpose." Affirmed by Supreme Court);State v. Batson, 220 N. C. 411, 17 S. E. 2d 511, 139 A. L. R. 614 (1941) (attemptto commit barratry; evidence: incitements to litigation other than those specific-ally charged held admissible to show "intent, motive and scienter"); State v.Payne, 213 N. C. 719, 197 S. E. 573 (1938) (murder of a highway patrolman inprocess of escaping from him; evidence: subsequent escapes from highway patrol-men involving a shooting duel admitted as "tending to show the state of mind ofthe defendants at the time of the killing." Evidence of weapons captured in carwith defendants 42 months after killing admitted, weapon by weapon, beforejury. E.g., cases collected in Note, 22 TEMP. L. Q. 459 (1949) ; Stone, The Ruleof Exclusion of Similar Fact Evidence: America, 51 HARV. L. REV. 988 (1938)." Lovely v. United States, 169 F. 2d 386 (C. C. A. 4th 1948) ; Note, 22 TEmp.L. Q. 459 (1949).2 0 MODEL CODE OF EVIDENCE, Rule 311 (1942).211 WIGMORE, EVIDENCE §216 (3d ed. 1940); STANSnURY, NORTH CAROLINAEVIDENCE §91 (1946 ed.).2' STANSDURY, NORTH CAROLINA EVIDENCE §91 (1946 ed.).19491

Evidence -- Criminal Prosecutions -- Rule Excluding Other Crimes

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Evidence -- Criminal Prosecutions -- Rule Excluding Other Crimes

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