Davidson County NcArchives Court.....James W. Elliott, State V. 1873
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Connie Ardrey n/a November 8, 2011, 9:43 am

Source: N C Reports
Written: 1873

State v. James W. Elliott

On cross examination, a witness on a trial for murder, stated that she "did 
not tell Mrs. L. on the day of the homicide, that the deceased was sitting up, 
and she did not think he was hurt as bad as he pretended to be": Held, that 
the State calling out this evidence was bound by it, and could not call Mrs. 
L. to contradict the statement.

Indictment for murder, tried before Cloud,, J., at the Fall Term, 1872, of the 
Superior Court of Davidson County.

The defendant was indicted for killing one Jesse F. Harris. On the trial in 
the Superior Court, a number of exceptions were taken to the rulings of his 
Honor on points arising, both in relation to the selection of the jury and to 
the admission of evidence, and also to his Honor's charge to the jury after 
the evidence and arguments had closed. These exceptions to the evidence and 
the charge of his Honor, it is unnecessary to state, as they are wholly 
irrelevant to the point upon which the case was decided in this Court; and the 
evidence objected to and received by the Court below, raising the question, 
the decision of which disposes of the case on this appeal, is fully set out in 
the opinion of the Court.

The jury returned a verdict of guilty. Motion for a new trial; notion refused. 
Judgment, and appeal by defendant.

Gorrell & Scott & Scott, for the defendant
Attorney General Hargrove, with whom was Bailey, for the State

NC Supreme Court Justice Settle, J. - On the trial, the prisoner introduced as 
a witness Mrs. Beck, who testified: "I am a sister of the prisoner's wife; on 
the afternoon of the day of the homicide, I saw the prisoner come out of the 
house with a bottle of camphor, in a great hurry. I went with the prisoner to 
the deceased; prisoner rubbed the deceased with camphor a great deal, did all 
he could for him. I did not rub the prisoner any. My mother, Mrs. Rainey Owen, 
brought water from the spring and put it on his head. I went as fast as I 
could to the place, when I heard what was the matter; saw a rock close by on 
the ground that would weigh four or five pounds; the prisoner sent Joyce Owen 
for Mrs. Harris and Alford Owen for the doctor. The prisoner and deceased 
always appeared very friendly, and visited frequently."

On cross examination, she stated that she did not tell Mrs. Ellen Lane on the 
day of the homicide that the deceased was sitting up, and she did not think he 
was hurt as bad as he pretended to be. The State then called Mrs. Lane to 
contradict Mrs. Beck. The prisoner objected to this evidence, but it was 
received by the Court, and Mrs. Lane testified that "Mrs. Beck and herself had 
a conversation on the day of the homicide, when she asked Mrs. Beck how 
deceased was, and Mrs. Beck replied: "I sit him up against the fence and 
washed the blood off him. I do not think he is hurt very bad; he makes out 
like he is hurt a great deal worse than he is."

It is very clear that the State questioned Mrs. Beck as to a collateral 
matter, and by a well-established rule of the law of evidence, was bound by 
her answer. There are exceptions to the general rule, that the answers of a 
witness as to collateral matters drawn out by cross examination are 
conclusive. When cross examinations instead of being general, descends to 
particulars, then the party is bound by the answer and cannot be allowed to go 
into evidence aliunde, in order to contradict the witness, for it would result 
in an interminable series of contradictions in regard to matters collateral, 
and thus lead off the mind of the jury from the matter at issue.

If the rule be such in a civil case, certainly it would apply with greater 
force in a criminal prosecution. We cannot weigh the effect that this 
contradiction of Mrs. Beck, on a collateral matter, may have had with the 
jury; it may have so prejudiced the prisoner's case as to lead to his 
conviction; but be that as it may, we are to apply to the case a well 
established rule of the law of evidence, which entitles the prisoner to a 
venire de novo (judicial order for a new trial after the first trial is 
declared a mistrial due to a fundamental or gross irregularity). 

Per Curiam

Venire de novo

Additional Comments:
In the NC Supreme Court January Term 1873

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