#### STATE v. PAUL JORDAN.

(Filed 12 December, 1934.)

1. Criminal Law G r — State is bound by testimony of defendant elicited on cross-examination as to matters collateral to charge and which do not tend to show motive, temper, etc., toward cause or parties.

Defendant, on trial for receiving stolen goods knowing *them to hare*been stolen, testified on cross-examination by the State that he had not stated he sold liquor, and that he had not been selling liquor: *Held,*the State was bound by defendant’s testimony on cross-examination in response to the collateral questions relative to his selling liquor and was precluded from contradicting it by testimony of .other witnesses that defendant had stated he sold liquor to everyone in the county.

2. Criminal Law G j—

When a defendant voluntarily becomes a witness in his own behalf, he has the same privileges and position, and is equally liable to be impeached or discredited, as any other witness.

3. Criminal Law L e—

The admission of incompetent testimony tending to disprove a defendant’s testimony in his own behalf as to a matter collateral to the charge upon which he is, tried cannot be held harmless, since it would tend to discredit his testimony relative to his innocence of the charge.

4. Criminal Law G b—

In a prosecution for receiving stolen goods knowing them to have been stolen, testimony that defendant sold liquor is incompetent as substantive proof, even of the intent to commit the crime charged.

Ahpeal by tbe defendant from *Clement, J.,*at July Term, 1934, of RichmoNd.

New trial.

Tbe facts pertinent to tbe appeal are set forth in tbe opinion.

*J. C. Sedberry for appellant.*

*Attorney-General Brummitt and Assistant Attorneys-Generdl Seawell and Bruton for the State.*

Schencic, J.

Tbe charge in tbe bill upon which tbe defendant was tried and convicted was that of feloniously receiving stolen goods, knowing them to have been stolen.

Upon cross-examination tbe defendant testified as follows:

> “I am not a liquor seller; I don’t say I sold liquor. I drink liquor. I have not sold liquor around up> there. I don’t know that I have sold any — just gone out and sold it. I have not sold it anywhere. If I said to tbe officers that I sold liquor to everyone in my county except tbe preacher, and gave him half a gallon, I was out of my bead. I said if they could get anyone to say a bard word about me — all that you can get *461anyone to say about me is tbat I sold liquor. I£ I said tbat tbe sheriff of Eandolph County knew tbat I was selling liquor, or anything like tbat, I did not know what I was saying. I was not drunk tbat night. . . . I said, 'If anyone says anything about me, they might say I sold liquor.’ I have not been selling liquor.”

After tbe defendant bad closed bis evidence, one West, a witness for tbe State, over tbe objection of tbe defendant, was permitted to testify: “I did not bear it at bis (defendant’s) home, but beard it after be was put in jail. I was asking him about this tobacco and stuff and be said no one could say anything against him only tbat be sold whiskey, and everyone knew it, and be sold it to everyone but tbe preacher, and tbe preacher come over there about two weeks ago and be gave him a half a gallon, and tbe preacher tried to give him $2.00, and be gave him tbe money back.” And one Finch, also a witness for tbe State, over objection of tbe defendant, was permitted to testify: “He (defendant) was down in jail tbat morning and one of tbe boys was getting a mattress for him, and be said anyone could say nothing against him except tbat be sold liquor, and be sold it to most everyone except tbe preacher, and tbe preacher come over there and wanted some and be gave him a jar and be offered him $2.00 for it and be gave him tbe money back.”

Tbe testimony of tbe defendant as a witness in bis own behalf to tbe effect tbat be bad not sold liquor or in any way dealt in liquor, and tbat be bad not told anyone be bad sold or dealt in liquor was entirely collateral to tbe offense with which be was charged, namely, tbat of feloni-ously receiving stolen goods, knowing them to have been stolen, and tbe State having elicited such testimony upon cross-examination was bound thereby and precluded from contradicting it.

Tbe general rule is tbat answers made by a witness to collateral questions on cross-examination are conclusive, and tbat tbe party who draws out such answers will not be permitted to contradict them; which rule is subject to two exceptions, first, where tbe question put to tbe witness on cross-examination tends to connect him directly with tbe cause or tbe parties, and second, where tbe cross-examination is as to a matter tending to show motive, temper, disposition, conduct, or interest of tbe witness toward tbe cause or parties. *S. v. Patterson,*24 N. C., 346; *S. v. Davis, 87*N. C., 514; *Cathey v. Shoemaker,*119 N. C., 424; *In re Craven's Will,*169 N. C., 561. It is clear tbat tbe testimony of tbe defendant elicited on cross-examination is not within either of tbe exceptions to tbe general rule, since its sole purpose was to disparage and discredit tbe witness.

'When tbe defendant voluntarily became a witness in bis own behalf, be occupied tbe same position, was entitled to tbe same privileges and protection, and was equally liable to be impeached or discredited as any other witness. *S. v. Efler,*85 N. C., 585.

*462In view of the rule enunciated by this Court, we are of the opinion that his Honor erred in admitting the testimony of the witnesses "West and Finch to contradict the defendant’s testimony as to facts collateral to the issue involved; and we cannot agree with the suggestion that the admission of such testimony was harmless error, since it at least laid the defendant’s testimony, as a witness in his own behalf, open to the implication of *"falsum in uno, falsum in omnibus,”*and could easily have discredited his testimony in the minds of the jurors. .

*We*are aware that in certain instances evidence of the commission of other offenses by the defendant will be heard to prove the intent of the offense with which he is charged. However, the violation of a prohibition statute, concerning which the witnesses "West and Finch testified, is a distinct and independent offense from feloniously receiving stolen goods, knowing them to have been stolen, with which the defendant was charged, and the transactions were in no wise so connected or contemporaneous as to form a continuing action, and evidence of the former was therefore inadmissible to prove even the intent of the latter. *S. v. Smith,*204 N. C., 638, and cases there cited.

Since there must be a new trial for the error assigned, it becomes unnecessary for us to discuss the other questions raised on this appeal. *We*do, however, hold that his Honor was correct in overruling the defendant’s demurrer to the evidence and motion to dismiss the action.

New trial.