In Re Potts

188 S.E.2d 643 (1972)

14 N.C. App. 387

In the Matter of Robin Gay POTTS.

No. 7218DC359.

Court of Appeals of North Carolina.

May 24, 1972.

Certiorari Denied August 1, 1972.

*644 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Parks H. Icenhour, for the State.

Smith, Patterson, Follin & Curtis, by Norman B. Smith and Michael K. Curtis, and Lee, High, Taylor & Dansby, by A. Leon Stanback, Jr., Greensboro, for Robin Gay Potts, appellant.

Certiorari Denied by Supreme Court August 1, 1972.

MALLARD, Chief Judge.

The first question presented by appellant is whether the court erred in admitting into evidence a photostatic copy of a statement signed by two of the witnesses. Appellant contends that the admission thereof contravened both the best evidence *645 rule and the rule prohibiting a party from impeaching his own witness.

"The best evidence rule applies only where the contents or terms of a document are in question. * * *

Even where the contents of the document are in question, production is not required if the writing is only collaterally involved in the case. * * *" Stansbury, N.C. Evidence 2d, § 191.

In the case before us, Mr. Clyde Tesh testified that he was Principal of the Jackson Junior High School, that Mrs. Wall was one of his teachers, and that Robert Potts (Robert) and Duncan McCrae (Duncan) had told him that they wanted to give him a statement, which, after Tesh had put it in writing, each of them signed. A photostatic copy of the original statement was admitted in evidence. Robert and Duncan each testified with respect thereto that "(t)his photostatic copy of a statement was read to me by Mr. Tesh, and I signed it." Therefore, the contents or terms of the statement were not in question, and in addition were not a vital part of the State's evidence. Under these circumstances, the best evidence rule was not violated and the court did not by reason thereof commit prejudicial error in admitting the photostatic copy into evidence.

"It is well established in this jurisdiction that a party cannot introduce testimony to impeach or discredit the character of his witness . . . . Yet, if the witness testifies to facts against the State's contentions, the State is not precluded from showing the facts to be other than as testified to by the witness. * * *" State v. Horton, 275 N.C. 651, 170 S.E.2d 466 (1969), cert. denied, 398 U.S. 959, 90 S. Ct. 2175, 26 L. Ed. 2d 545, reh. denied, 400 U.S. 857, 91 S. Ct. 25, 27 L. Ed. 2d 97. See also, State v. Cohoon, 206 N.C. 388, 174 S.E. 91 (1934).

The testimony of Mrs. Wall, Mr. Clendenin, Duncan, Robert and Mr. Tesh is listed under "Petitioner's Evidence." The photostatic copy of the statement that Robert and Duncan testified they signed does not tend to impeach them; in fact, it tends, in part, to corroborate them. The statement is dated 8 December 1971 and reads as follows:

"Playing in hallpushing each otherDuncan ran, Robert chased, Duncan ran into Mrs. Wall. Mrs. Wall talked to two boysgave a little tap on shoulder, told to go on to class. Robin grabbed Robert's arm, said come on. Mrs. Wall removed Robin's arm from Robert, told her that she & Robert were talking, none of Robin's business. Robin got mad, jumped on Mrs. Wall."

This photostatic statement does not corroborate all of the testimony of Duncan or Robert at the trial; however, it does corroborate each of them in part and does not specifically impeach, contradict or discredit any specific portion of their testimony, with the possible exception of Duncan's testimony, "I did not see what happened after Mrs. Wall told Robin to go on." But even this is not a specific contradiction of his statement that he did not see Robin "jump on" Mrs. Wall. Mrs. Wall's testimony that she did not shove the child into the water cooler is contradicted by the testimony of Robert that she did, yet this does not violate the rule which prohibits impeachment of one's own witness but permits a party to show the facts to be other than as testified to by his witness. State v. Horton, supra. Also in cases heard by a judge without a jury, there is a presumption, nothing else appearing, that the judge disregarded incompetent evidence. We hold therefore that the judge did not commit prejudicial error in admitting the photostatic copy of the statement itself in evidence.

The next question presented by appellant is whether the exclusion of the public is mandatory in juvenile proceedings *646 in the district court. The pertinent part of G.S. § 7A-285 reads as follows: "The general public may be excluded from any juvenile hearing in the discretion of the judge." (Emphasis added.) This makes it a discretionary matter with the trial judge whether the general public (which includes newspaper reporters) is excluded from the hearing. On the record before us, no abuse of discretion or prejudicial error is shown by the fact that a newspaper reporter was present during the hearing.

Appellant raises the question of whether the court, after having found the child to be delinquent, properly committed her to the custody, control and supervision of the officials of the State Board of Youth Development. The appellant argues that the court failed to find that such disposition was in the best interest of the child and that its order is therefore fatally defective. This contention is without merit because it overlooks the applicable statutes and case law and ignores the finding by the court that the child "is a delinquent child within the meaning of the law and that she is in need of the discipline and supervision of the state." See In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), affirmed, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647; In re Whichard, 8 N.C.App. 154, 174 S.E.2d 281 (1970), appeal dismissed, 276 N.C. 727; and G.S. § 7A-285 and G.S. § 7A-286.

The record reveals that at the conclusion of the adjudicatory part of the hearing, the court proceeded to the disposition of the child as authorized by the provisions of G.S. § 7A-285. In announcing the disposition, the court said:

"If the schools are to operate, it is necessary that those in charge be respected. The courts cannot tolerate attacks on public school teachers by students."

The defendant contends that this statement and the order entered indicate that the interest of the child was not considered in the final decision. No law-abiding American citizen can logically argue otherwise than that public school teachers must be protected from attack by unruly, undisciplined and unrestrained students. The judge found, upon competent evidence, that this incident was an unprovoked attack by the child upon the teacher and that the child was a delinquent. The law imposed upon him the duty to make proper disposition of the child. In making such disposition, the statute, G.S. § 7A-286, provides that "(t)he judge shall select the disposition which provides for the protection, treatment, rehabilitation or correction of the child after considering the factual evidence, the needs of the child, and the available resources, as may be appropriate in each case." (Emphasis added.) The appellant's argument that the interest of the child was not considered in the final disposition is not supported by the record, the factual evidence, or the demonstrated needs of the child.

The last question presented by appellant is whether the court properly proceeded with the juvenile hearing in the absence of the solicitor.

G.S. § 7A-61 reads in part: ". . . (T)he solicitor shall . . . represent the State in juvenile cases in which the juvenile is represented by an attorney." In this case the child was represented by an attorney. It also appears of record that there was present at the hearing ". . . Mr. William Caffrey, private counsel representing Mrs. Wall as legal advisor, but (who) did not participate in the case in the capacity of the prosecuting attorney. . . ." The appellant now argues that because the solicitor did not represent "the State" the judge was cast in the role of prosecutor. We do not think that this record supports this conclusion. The record reveals that someone other than the judge examined the petitioner's, as well as the child's, witnesses and that most of the witnesses were asked some but not many clarifying questions by the judge in that portion of the record entitled, "Cross Examination by the Court."

*647 In State v. Rush, 13 N.C.App. 539, 186 S.E.2d 595 (1972), it is said:

"* * * The purpose of Article 23 as set out in G.S. 7A-277 is `to provide procedures and resources for children under the age of sixteen years which are different in purpose and philosophy from the procedures applicable to criminal cases involving adults.' See In re Whichard, 8 N.C.App. 154, 174 S.E.2d 281, appeal dismissed 276 N.C. 727 (1970). G.S. § 7A-285 provides that `The juvenile hearing shall be a simple judicial process designed to adjudicate the existence or nonexistence of any of the conditions defined by G.S. 7A-278(1) through (5) which have been alleged to exist, . . .' We believe the informal procedure contemplated by the statute allows the questioning of witnesses by the trial judge to elicit relevant testimony and to aid in arriving at the truth. * * *"

As in Rush, we think the judge in this case (who was the same judge that tried the Rush case) was fair and judicious in the asking of questions and that no judicial bias is shown on this record. It further appears to us that the judge performed the duty required of him by G.S. § 7A-285 that ". . . the judge shall find the facts and shall protect the rights of the child and his parents in order to assure due process of law. . . ."

We hold that all of the parties were properly before the court, after proper notice and upon a petition invoking the jurisdiction of the court, that all parties offered evidence and participated in the hearing, the child was represented by counsel, that the basic requirements of due process were met, and that no prejudicial error appears on this record.

The judgment of the district court is affirmed.

Affirmed.

CAMPBELL and BROCK, JJ., concur.