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Attorney(S)

Attorney General, for the State. Mr. Robert W. Winston, for the defendant.

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Smart Summary

Summary of Opinion: State v. Rose Burton (Supreme Court of North Carolina, February Term, 1886)

Factual and Procedural Background

The defendant, Rose Burton, was indicted for an assault and battery with a deadly weapon and with intent to kill. The case was tried before Judge Gilmer at the Fall Term, 1885, of Granville Superior Court. The Attorney General prosecuted the case for the State; Mr. Robert W. Winston represented the defendant.

The prosecutrix testified for the State that in August 1884 the defendant came to her house at night, disguised as a man with her face partially covered by a white cloth, beat the prosecutrix severely with a heavy stick on the head and body, and ran her away from the house. On cross-examination the prosecutrix was asked about the state of feeling between her and the defendant; despite an objection by the defendant the question was allowed and the prosecutrix answered that the defendant was "very angry with her." The State was also allowed (over the defendant's objection) to elicit from the prosecutrix that about a week before the assault the defendant had been at the prosecutrix's house disguised as a man and had been recognized by the prosecutrix.

The defendant testified denying presence at the prosecutrix's house at the time of the alleged assault and produced evidence tending to show an alibi. The defense offered a witness named Home to prove that, on the night of or the night after the assault, the witness met the prosecutrix and another woman, and that the other woman, in the presence and hearing of the prosecutrix, stated that the person who committed the assault was unknown. The defense offered this to contradict the prosecutrix's identification; the State objected and the trial court excluded the testimony of Home. The defendant excepted to that exclusion.

The jury returned a verdict of guilty; judgment was entered against the defendant, who appealed to the Supreme Court of North Carolina.

Legal Issues Presented

Whether testimony offered by the defendant (via witness Home) that a third person, in the presence and hearing of the prosecutrix, stated that "the person was unknown" — and the prosecutrix made no reply — was admissible as evidence to impeach or contradict the prosecutrix by implication (i.e., as an implied admission through silence).
Whether the rule that silence or acquiescence in the presence of a statement may be treated as an admission (when the statement was such as to properly and naturally call for a reply) applies to a prosecutrix in a criminal prosecution.

Arguments of the Parties

State's Position

The State introduced the prosecutrix and sought to prove identification (including a prior occasion about a week earlier when the defendant, disguised as a man, was recognized by the prosecutrix).
The State objected to the defendant's proffered testimony from witness Home that another woman had said "the person was unknown" in the prosecutrix's presence; the State argued (by its objection) that this testimony should not be admitted to contradict the prosecutrix.

Defendant's Position

The defendant objected when the prosecutrix was asked about the state of feeling between the parties (the cross-examination question seeking to show unfriendly relations); the court overruled that objection and the defendant excepted.
The defendant offered an alibi and offered witness Home to prove that, in the prosecutrix's presence, another person had said the perpetrator was unknown — proffered to contradict the prosecutrix's claimed identification. The trial court excluded this testimony; the defendant excepted and raised the exclusion as error on appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Taylor on Evidence, Sec. 733 (treatise)	Explains admissions implied from acquiescence/silence: acquiescence must exhibit an act of the mind, be voluntary conduct, be fully known or understood by the party, afford opportunity to speak, and be such as would properly and naturally call for some reply.	The Court quoted this passage and relied on it as the doctrinal statement describing when silence may be treated as an admission; used the elements enumerated to evaluate admissibility of the excluded testimony.
Guy v. Manuel, 89 N.C. 83	Applied rule that a statement of others may be evidence against a party by reason of implied admission only when made on an occasion when a reply from the party might properly be expected.	The Court cited Guy v. Manuel as authority supporting the requirement that the circumstances must be such that a reply might properly be expected before an implied admission is inferred.
State v. Bowman, 80 N.C. 432	Referenced in connection with the proposition that an implied admission requires opportunity and natural expectation of a reply.	Cited by the Court (via Guy v. Manuel citation) as part of the jurisprudence establishing the conditions for inferring admission from silence.
State v. Crockett, 82 N.C. 599	Referenced in connection with the same principle concerning implied admissions from silence.	Used by the Court as part of the chain of authority showing the rule's application to criminal defendants and parties.
Wharton on Evidence (sec. cited in opinion)	Textual authority referenced on the rule of admissions by silence/acquiescence.	Cited to support the doctrinal rule that an implied admission requires circumstances calling for a reply.
S. v. Morton, 107 N.C. 894	No specific rule or principle from this case is described in the provided opinion.	This case is listed in the opinion's later citation list; the opinion itself does not describe how Morton was applied or what principle was cited from it.
S. v. Record, 151 N.C. 697	No specific rule or principle from this case is described in the provided opinion.	Listed among subsequent citations; the opinion does not explicate any application.
S. v. Randall, 170 N.C. 762	No specific rule or principle from this case is described in the provided opinion.	Listed in the opinion's citation list without further explanation in this text.
S. v. McKinney, 175 N.C. 786	No specific rule or principle from this case is described in the provided opinion.	Included in the opinion's concluding list of cases that cite or relate to this decision; no further application is stated in the provided opinion.
S. v. Martin, 182 N.C. 851	No specific rule or principle from this case is described in the provided opinion.	Listed among subsequent citations; no substantive description is provided in the opinion excerpt.
S. v. Evans, 189 N.C. 235	No specific rule or principle from this case is described in the provided opinion.	Mentioned in the concluding citation list without analysis in this opinion.
S. v. Portee, 200 N.C. 142	No specific rule or principle from this case is described in the provided opinion.	Listed among citations appended to the opinion; the provided text contains no descriptive application.
S. v. Wilson, 205 N.C. 379	No specific rule or principle from this case is described in the provided opinion.	Included in the later citation list; no application described in the opinion excerpt.
S. v. Hawkins, 214 N.C. 330	No specific rule or principle from this case is described in the provided opinion.	Cited at the end of the opinion; the provided opinion does not explain its use.
S. v. Rich, 231 N.C. 699	No specific rule or principle from this case is described in the provided opinion.	Listed in the concluding citation list; no further detail is given in the excerpt.
S. v. Hendrick, 232 N.C. 455	No specific rule or principle from this case is described in the provided opinion.	Included among later citations appended to the opinion; no substantive application is recited here.
S. v. Temple, 240 N.C. 744	No specific rule or principle from this case is described in the provided opinion.	Listed in the opinion's citation list; the provided text contains no discussion of its application.

Court's Reasoning and Analysis

The Court focused on the exclusion of the defendant's offered testimony through witness Home and analyzed whether a statement by a third person, made in the presence and hearing of the prosecutrix that "the person was unknown," could be admitted as evidence bearing on the prosecutrix's credibility through the doctrine of implied admissions from silence.

The Court turned to established authority for the governing legal test. It quoted Taylor on Evidence, Sec. 733, which states that an admission implied from acquiescence or silence requires (1) that the party's silence or conduct exhibit an act of the mind and constitute voluntary demeanor; (2) that the party fully knew or fully understood the conduct or language of others; and (3) that the circumstances were such as to afford an opportunity to act or speak and would properly and naturally call for some action or reply from a person similarly situated.

The Court also cited Guy v. Manuel, and authorities such as State v. Bowman and State v. Crockett and Wharton on Evidence, to support the specific proposition that a statement of another can be treated as evidence against a party by reason of the party's implied admission only when the statement was made on an occasion "when a reply from him might properly be expected."

Applying these principles to the facts before it, the Court observed that the conversation at issue occurred either on the night of the assault or the night after, at a time when the details were fresh in the prosecutrix's memory and while there was an inquiry into the identity of the perpetrator. Under those circumstances, the Court held it was natural and reasonable to expect that the prosecutrix would speak if she knew the identity; her silence therefore raised at least a slight inference that she did not know the identity. Although the Court acknowledged this was a slight presumption (since silence could be explained by other motives), it nevertheless concluded the evidence bore on the prosecutrix's credibility and ought to have been presented to the jury to weigh.

Because the trial court excluded that evidence, the Supreme Court concluded there was error requiring a new trial. The Court also noted an unrelated formal error in the judgment below (an alternative form of judgment), but deemed that immaterial in light of the grant of a new trial.

Holding and Implications

Holding: The Supreme Court held that there was error in excluding the testimony offered by the defendant (through witness Home) and ordered that a venire de novo be awarded. The judgment below was reversed.

Implications: The direct effect of the decision is to grant the defendant a new trial on the indictment because the excluded testimony was relevant to impeaching the prosecutrix by reason of her silence when a reply might properly have been expected. The Court applied established principles concerning implied admissions from silence (as stated in Taylor on Evidence and supporting authorities) to conclude the excluded evidence should have been submitted to the jury. The opinion does not, within the provided text, claim to establish a novel legal rule beyond applying those principles to the prosecutrix's silence in this particular factual context.

Opinion by Ashe, J.; judgment: Error. Reversed. Venire de novo awarded.

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STATE v. ROSE BURTON.

Admissions — Evidence.

1. The rule that an admission of the truth of a statement, made by another in the presence of a party to an action, will be inferred from his silence, applies to the prosecutor in a criminal action.

2. To authorize such inference it must clearly appear, not only that the statement was fully understood, but also that it was of such a character, or made under such circumstances as would naturally call for some reply.

There were several exceptions taken on the trial, to the ruling of the Court upon the admission of evidence.

The main question involved, was as to the identity of the defendant. The prosecutrix, introduced as a witness for the State, testified, that in August, 1884, the defendant, at night, came to her house disguised as a man, in men's clothing, with her face partially concealed with a white cloth, and beat her with a heavy stick, severely on her head and body, and ran her away from her house. On cross-examination, the witness was asked what was the state of feeling between her and the defendant, proposing to show that it was unfriendly. The defendant objected to the evidence, but it was allowed, and the defendant excepted. The witness answered, the defendant was very angry with her.

As bearing on the means of identification, the State was allowed, after objection by the defendant, to prove by this witness, that about a week before the assault, the defendant was at the witness' house, disguised as a man, and the witness then recognized her.

The defendant, testifying in her own behalf, denied being at the house of the prosecutrix at the time of the alleged assault, and also introduced evidence tending to prove an alibi.

One Home was introduced by the defendant, who proposed to show by him, that he met the prosecutrix and another woman, the night of, or the night after, the alleged assault, and that the other woman narrated to the witness, in the presence and hearing of the prosecutrix, what had happened, stating that the person who committed the assault was unknown. This was offered as tending to contradict the prosecutrix. The State objected to the evidence, and it was not allowed, and the defendant excepted.

The jury returned a verdict of guilty. There was judgment against the defendant, from which she appealed to this Court.

(949) ASHE, J. (after stating the facts).

We think there was error in excluding the testimony of the witness, Home, by whom it was proposed by the defendant to prove what was said by an other woman, in the presence and hearing of the prosecutrix, in regard to the identity of the person who had committed the assault. The conversation occurred either on the night, or the night after, the assault, when the circumstances of the transaction were fresh in the memory of the prosecutrix, and before she had made a statement to any one, so far as appears, as to the person who committed the act and while there was an inquiry as to the perpetrator.

The doctrine is thus laid down by Taylor on Evidence, Sec. 733 "Admissions may also be implied from the acquiescence of the party. But acquiescence of the party, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party, and whether it be acquiescence in the conduct or language of others, it must plainly appear, that such conduct was fully known, or such language fully understood by the party, before any inference can be drawn from his passiveness or silence. The circumstances too, must not only be such as afford him an opportunity to act or to speak, but such also as would properly and naturally call for some action or reply, from men similarly situated."

In Guy v. Manuel, 89 N.C. 83, this Court held, that "to make the statement of others evidence against a party, on the ground of his implied admission of its truth, it must be made on an occasion when a reply from him might properly be expected. State v. Bowman, 80 N.C. 432; State v. Crockett, 82 N.C. 599. Wharton on Evidence, 1136.

It is true, the principles announced by the authorities cited, are applied either to parties to an action, or to defendants charged with crime, but we can see no reason why, by analogy, they should not apply to the prosecutrix in a criminal action, as here, when a violent assault had just been committed, and the inquiry is made as to the person who had committed the act, and it was said in the presence (950) and hearing of the prosecutrix, who had been so recently assaulted, that the person was unknown, it was most natural, and therefore to be expected, that she would, at once say, "I know who did the act." But she was silent, and it is to be presumed that she did not know, or she would have spoken. It must be admitted, that is a very slight presumption, for she may have had some motive for being passive. But still, it was some evidence tending to impugn the credibility of the prosecutrix, and should have been submitted to the jury, to be weighed by them for what it was worth, and in the refusal to submit it to the jury, we think there was error.

There were some other exceptions taken in the course of the trial, which we think it unnecessary to consider, as the error on this point, secures to the defendant a new trial.

We have not overlooked an error in the judgment rendered below, which was in the alternative, but as a new trial is to be awarded, that is immaterial, as a proper judgment may be rendered, should the defendant be again convicted.

There is error. Let this be certified to the Superior Court of Granville County, that a venire de novo may be awarded.

Error. Reversed.

Cited: S. v. Morton, 107 N.C. 894; S. v. Record, 151 N.C. 697; S. v. Randall, 170 N.C. 762; S. v. McKinney, 175 N.C. 786; S. v. Martin, 182 N.C. 851; S. v. Evans, 189 N.C. 235; S. v. Portee, 200 N.C. 142; S. v. Wilson, 205 N.C. 379; S. v. Hawkins, 214 N.C. 330; S. v. Rich, 231 N.C. 699; S. v. Hendrick, 232 N.C. 455; S. v. Temple, 240 N.C. 744.

STATE v. BURTON