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17 N.C. App. 712

195 S.E.2d 314

State v. Alston

Court of Appeals of North Carolina

Decided March 28, 1973

Court of Appeals of North Carolina · decided 1973-03-28

Cited by 8 later decisions — most recently July 2019

2 federal appellate · 6 state decisions

Key passage — most relied on by later courts

““While latitude is allowed in showing the bias, hostility, corruption, prejudice and interest or misconduct of the witness with respect to the case or other facts tending to prove that his testimony is unworthy of credit, . . . the question as to the extent to which the cross-examination may extend is to be determined with a view to the discretion of the trial judge. Nevertheless, if the latter has excluded testimony which would clearly show bias, interest, the promise, or the hope of reward on the part of the witness, it is error and may be ground for a new trial. (Citations omitted.) The discretionary power of the trial judge is to confine the cross-examination within reasonable limits. It does not include the authority to exclude altogether questions, and the answers thereto, which directly challenge the disinterestedness or credibility of the witness’ testimony.””

quoted by 1 later decision, including 40 N.C. App. 623 - State v. Evans

“An accessory before the fact is one who meets every requirement of a principal in the second degree, except that of presence at the time.”

quoted by 1 later decision, including United States v. Dinkins

Relies on State v. . Roberson · 16 N.C. App. 527 - State v. Wiggins

Good law ✅— No negative treatment on recordhow we know

Decided 1973-03-28

View the full empirical analysis of this case →

CAMPBELL, Judge.

¶1 Defendant has asserted in several assignments of error that the trial court improperly conducted the trial. We think at least two of these assignments are well taken, and there must be a new trial. We will refrain from discussing the other assignments of error as they may not arise on a new trial.

¶2 During the course of the trial, counsel for the defendant was attempting to question one of the two holdup men who testified against the defendant. The line of questioning was aimed at testing the credibility of the witness with particular reference to whether he was testifying against the defendant because of the possibility that he would be able to expect leniency in his own sentence when he was faced with a potential maximum sentence of 30 years. The trial judge intervened and ruled that this line of cross-examination could not proceed. The trial judge was acting on the premise that it was improper to bring out before the jury the possible sentence as that was a matter for the court and not for the jury. In the instant case the defendant’s counsel had the right to probe and test the credibility of the witness, and this right took precedence over the prohibition the judge was seeking to maintain. Much latitude is allowed in showing the bias, hostility or other interest of a witness with respect to the case or other facts tending to prove that the testimony of the witness is unworthy of credit. State v. Roberson, 215 N.C. 784, 3 S.E. 2d 277 (1939). It was error to restrict the cross-examination.

¶3 The trial judge submitted case No. 72CR892, which was the charge of armed robbery, on the basis of the defendant being an aider and abettor. There was no evidence in the record to support such a finding. There is no evidence which would support a finding that at the time the robbery was committed, defendant was situated where he could give Jackson or Williams any advice, aid, encouragement, or comfort, if needed, while they were perpetrating the robbery. Thus, defendant was neither actually nor constructively present at the time, and he could be guilty at most of being an accessory before the fact. An accessory be *715 fore the fact is one who meets every requirement of a principal in the second degree, except that of presence at the time. State v. Wiggins, 16 N.C. App. 527, 192 S.E. 2d 680 (1972). On this record case No. 72CR892 (armed robbery) should have been submitted to the jury on whether or not the defendant was an accessory before the fact which was an included offense within the bill of indictment.

¶4 New trial in both cases.

Judges Britt and Graham concur.
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