State v. Austin

167 S.E.2d 10 (1969)

4 N.C. App. 481

STATE of North Carolina v. Sammie Lewis AUSTIN.

No. 6926SC89.

Court of Appeals of North Carolina.

April 30, 1969.

*11 Atty. Gen. Robert Morgan, Deputy Atty. Gen. Harrison Lewis, and Trial Atty. Robert G. Webb, Wilson, for the State.

William L. Pender, Charlotte, for defendant appellant.

MALLARD, Chief Judge.

The defendant contends that the trial court committed error in refusing defendant's request through his counsel to instruct the jury as to how they should receive evidence of defendant's previous convictions.

The following occurred, which is part of what the defendant calls his "Assignment of Error #1," while the solicitor for the State was cross-examining the defendant who testified but did not otherwise put his character in issue:

"Q. What have you been tried and convicted of, Mr. Austin? Just tell this jury what you have been tried and convicted of?

MR. PENDER: I request special instruction to the jury how they are supposed to consider any evidence * * *

THE COURT: I will."

Thereafter, the defendant in answer to questions gave testimony as to his prior convictions of the criminal law. The trial court did not then or later instruct the jury concerning the limited and restricted purpose for which such evidence was competent.

Absent a request in apt time to limit and restrict such evidence to impeachment purposes, the trial judge is not required to give such instructions. State v. Goodson, 273 N.C. 128, 159 S.E.2d 310.

However, the defendant contends that the above request was sufficient to require the court to limit and restrict the testimony concerning the defendant's prior criminal record.

"Where evidence competent for some purposes, but not for all, is admitted generally, counsel must ask, at the time of admission, that its purpose shall be restricted." Stansbury, N.C. Evidence 2d, § 27.

We think that the above request coming at the time it did, and under the circumstances shown by this record, required the judge to instruct the jury that admissions by the defendant on cross-examination of his prior unrelated criminal record were not to be considered by the jury as substantive evidence, that they were competent only for the purpose of impeaching the defendant as a witness, if the jury should find that such did impeach him.

The case of State v. Norkett, 269 N.C. 679, 153 S.E.2d 362, is similar to the present case and states the rule clearly. There, the Court said:

"Defendant testified, but did not otherwise put his character in issue. For purposes of impeachment, he was subject to cross-examination as to convictions for unrelated prior criminal offenses. However, admissions as to such convictions are not competent as substantive evidence but are competent as bearing upon defendant's credibility as a witness. Stansbury, op. cit., § 112; State v. Sheffield, 251 N.C. 309, 312, 111 S.E.2d 195, 197.

Under these circumstances, defendant was `entitled, on request, to have the jury instructed to consider (this evidence) only *12 for the purposes for which it is competent.' Stansbury, op. cit., § 79; State v. Ray, 212 N.C. 725, 729, 194 S.E. 482, 484. It is noteworthy that, prior to the adoption of the rule now included in Rule 21, Rules of Practice in the Supreme Court, 254 N.C. 803, a defendant was entitled to such instruction even in the absence of request therefor. State v. Parker, 134 N.C. 209, 46 S.E. 511; Westfeldt v. Adams, 135 N.C. 591, 47 S.E. 816."

Failure to give the requested instruction was prejudicial error for which defendant is entitled to a new trial.

New trial.

BRITT and PARKER, JJ., concur.