Appeal by defendant from Hobgood, Judge. Judgment entered 8 October 1980 in Superior Court, Franklin County. Heard in the Court of Appeals 16 September 1981.
Martin (Robert M.), Judge. Judges Martin (Harry C.) and Becton concur.
The defendant assigns as error the refusal of the trial court to suppress Officer Roberts' testimony as to what Marie Perry had told him. We agree with the defendant that this testimony was hearsay, and did not fall within any of the recognized exceptions to the hearsay rule.
Whenever the assertion of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted, the assertion so offered is hearsay. 1 Stansbury's N.C. Evidence § 138 (Brandis Rev. 1973). Marie Perry told Officer Roberts that Daniel Perry had told her that "he had beat up Ben Fish and had run him into an intersection and killed him." There are two out-of-court statements here, the one by Daniel Perry to his wife, and the one by his wife to Officer
Roberts. Because both out-of-court statements are offered for the truth of the matter, that is to prove that the defendant killed Ben Fish, this is a double hearsay situation. Each statement, therefore, must fall within an exception to the hearsay rule in order to be admissible. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971), cert. denied 414 U.S. 874 (1973).
Regardless of whether the admission by Daniel Perry to his wife would be admissible if offered by Marie Perry, in light of State v. Freeman, 302 N.C. 591, 276 S.E.2d 450 (1981), Officer Roberts cannot testify as to what Marie Perry told him. That statement depends completely on the competency and credibility of Marie Perry. She is not available to testify and her out-of-court statement to Officer Roberts does not fall within any exception to the hearsay rule. It was prejudicial error to admit the testimony of Officer Roberts.
The defendant's remaining assignment of error concerns the trial court's denial of the defendant's motion to dismiss at the close of the State's evidence and again at the close of all the evidence. A motion of nonsuit in a criminal action requires consideration of the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975). All of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is considered by the Court in ruling upon the motion. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). Considering all the evidence in this case, including the improperly admitted hearsay evidence, the State offered substantial evidence to support a finding that the offense charged had been committed and that the defendant committed it, so that a case for the jury was made and nonsuit was properly denied. State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968).
Because of the prejudicial error caused by the trial court's erroneous admission of the hearsay testimony offered by Officer Roberts, the defendant is entitled to a new trial on the charges of involuntary manslaughter.