State v. Thomas

193 S.E.2d 450 (1972)

17 N.C. App. 8

STATE of North Carolina v. Earnest Ray THOMAS.

No. 728SC665.

Court of Appeals of North Carolina.

December 20, 1972.

*451 Atty. Gen. Robert Morgan and Asst. Attys. Gen. William W. Melvin and William B. Ray, for the State.

Turner & Harrison by Fred W. Harrison, Kinston, for defendant appellant.

MALLARD, Chief Judge.

The defendant contends that the trial court erred in failing to grant his motion for judgment as of nonsuit. We hold that there was sufficient evidence to require submission of the case to the jury.

Defendant also contends that the trial court committed error when it allowed evidence to be admitted of other crimes committed by defendant while operating an automobile. The defendant contends that although he later took the witness stand and testified, this does not make such evidence competent because he may not have testified or offered any evidence, except for this error.

State's witness Whitehurst, who testified that he was a member of the State Highway Patrol, was permitted to testify over objection, as follows:

"Q. Trooper, in reference to that license check, will you please tell us the status of the defendant's driving license on the date of the accident? A. His license were in a state of suspension. Q. How long were they suspended for? A. The license were taken on February 20, 1970, and his license were suspended on March 8, 1970, and were suspended until May 8, 1971. Q. Now, during that suspension was there another conviction? A. Yes, sir. Q. What was that conviction for? A. Reckless Driving. Q. Is there a suspension for driving while license were suspended? A. Yes, sir. That was November 9, 1970. Q. And did that result in the further suspension of his driver's license? A. Yes, sir. Q. What further period of suspension did that result in? A. His license were suspended for a further period of until May 7, 1973. Q. Would you please repeat the dates of license suspension conviction? A. That was in New Bern District Court, November 9, 1970."

In Stansbury, N.C. Evidence 2d, § 91, it is said: "Evidence of other offenses is inadmissible if its only relevancy is to show the character of the accused or his disposition *452 to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact, it will not be excluded merely because it also shows him to have been guilty of an independent crime."

The defendant contends, and we agree, that when the solicitor continued to ask this witness questions as to other crimes the defendant had been convicted of prior to the time that the defendant testified, such was prejudicial error. It violated the rule that evidence of other offenses is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged. While the fact that the defendant's driver's license was in a state of suspension was competent as evidence in the case, the reasons for the suspension were incompetent and their admission into evidence amounted to prejudicial error. The fact that the defendant may have been convicted of reckless driving on another occasion while his driver's license was suspended and for driving while his driver's license was suspended does not come within any of the exceptions to the general rule excluding evidence of the commission of other offenses as set out in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). Moreover, we are of the opinion that the fact that defendant was later properly cross-examined concerning his prior convictions for the purpose of impeaching his credibility did not cure the error. If we were to hold otherwise, it would amount to a condonation of a practice which the rules of evidence forbid.

Defendant has other assignments of error, some of which have merit but which may not recur on a new trial, and we have not considered them.

We are of the opinion and so hold that the defendant is entitled to a new trial.

New Trial.

BROCK and BRITT, JJ., concur.