State v. Tuttle

220 S.E.2d 630 (1975)

28 N.C. App. 198

STATE of North Carolina v. Ricky Ray TUTTLE.

No. 7521SC468.

Court of Appeals of North Carolina.

December 17, 1975.

*631 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. John M. Silverstein, Raleigh, for the State.

Nelson, Clayton & Boyles by Laurel O. Boyles, Winston-Salem, for defendant-appellant.

MARTIN, Judge.

Defendant contends that the trial court committed prejudicial error in not allowing defendant's counsel to cross-examine the prosecutrix as to her sexual past.

The general character of the prosecutrix in a rape case may be shown as bearing upon the question of consent. State v. Grundler, 251 N.C. 177, 111 S.E.2d 1 (1959). However, specific acts of unchastity with persons other than defendant are inadmissible in such cases. State v. Grundler, supra. Of course, the prosecutrix may be cross-examined concerning specific acts of unchastity for the sole purpose of impeaching credibility, State v. Murray, 63 N.C. 31 (1868), but the defendant is bound by her answer. 1 Stansbury, N.C. Evidence, § 111 (Brandis Rev.1973). A witness called by the defendant cannot be asked about specific acts of misconduct by prosecutrix. This witness must confine himself to testimony concerning general reputation for chastity. State v. Hairston, 121 N.C. 579, 28 S.E. 492 (1897).

On cross-examination the prosecutrix was asked the following question:

"Q. How long prior to this night, Miss Ahern, was the first time you ever had sexual experiences? Mr. Lyle: Objection. The Court: Sustained. Exception No. I."

The witness had previously testified on cross-examination that she had had intercourse previous to that night. The question related to a specific act of unchastity and was competent for the purpose of impeaching credibility. State v. Murray, supra. However, we hold that its exclusion under all of the circumstances of this case was not sufficiently prejudicial to warrant another trial. The evidence of independent witnesses as to the physical condition of the prosecutrix on the night the intercourse occurred corroborates her testimony.

The defendant next contends that the cross-examination of the defendant as to his court record while a juvenile was reversible error. This contention is without merit. For purposes of impeachment, it is permissible to cross-examine a juvenile defendant with reference to his prior convictions or adjudications of guilt of prior conduct which, if committed by an adult, would have constituted a conviction of crime. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972). Thus, the district attorney's examination of the defendant as to his past record was not more than the law allows. This assignment of error is overruled.

Defendant's remaining assignment of error is without merit.

Defendant had a fair trial, free from error.

No error.

BROCK, C. J., and VAUGHN, J., concur.