State v. . AustonState v. . Auston
- Reporters:
- , ,
- Before:
- Stacy
Wе have here for determination the correctness оf the charge in two particulars.
First. The court instructed the jury, “there has been some character evidence offered in this case. . . . The court instructs you that that is corrobоrative evidence going to the weight and credibility of the testimony of those witnesses.”
The defendant complains at this instruction because in addition to the character evidence of the State’s witnesses, it covers the evidence of his bad character, and denominates it “corroborative evidence,” which could only mean that it was cоrroborative of the State’s witnesses as it could not corroborate the defendant’s testimony. S. v. Colson, 193 N. C., 236, 136 S. E., 130. This interpretation аppears to be somewhat strained. Its natural significance is, that the evidence in respect of the defendant’s bad character would go to the weight and credibility of his testimony. For this purpose it was competent, S. v. Traylor, 121 N. C., 674, 28 S. E., 493, and it is not to be supposed the jury considered it in any other light. S. v. Oloninger, 149 N. C., 567, 63 S. E., 154; S. v. Atwood, 176 N. C., 704, 97 S. E., 12. The exception is not sustained.
Second. Thе court further instructed the jury that the defendant had the right to testify in his оwn behalf or to remain off the witness stand, as he should elect or be advised, “but when he does take the witness stand and testify, it is sаid by reason’ of our law that he is an interested witness, that he is intеrested in the outcome of your verdict and it is your duty to loоk into and very carefully and very cautiously scrutinize his testimony and weigh it in the light of such interest, but it is said by reason of our law, if, after doing that, you find the defendant is telling the truth, then it is your duty to give his evidencе the same weight and attach to it the same meaning and credibility as you would that of a disinterested witness.”
The defendant contends that this instruction unduly disparaged his testimony and disadvantagеd him before the jury. S. v. Dee, 214 N. C., 509, 199 S. E., 730; Anno. 85 A. L. R., 545. It must be conceded that *205 the use of the expression “very carefully and very cautiously scrutinize” the defendant’s testimony is in advance of admonitions heretofore sustained. S . v. Holland, 216 N. C., 610, 6 S. E. (2d), 217. As will be seen from what is said in S. v. McKinnon, ante, 160, this day decided, the expression is not to be commended. And even though its usе here appears innocuous, its infelicity suggests that it be еschewed.’
When one charged with the commission of a сrime avails himself of the statute, C. S., 1799, and testifies in his own behalf, “he assumes the position of a witness and subjects himself to all the disadvantages of that position, and his credibility is to be weighed аnd tested as that of any other witness.” S. v. Efler, 85 N. C., 585; S. v. Fogleman, 164 N. C., 458, 79 S. E., 879; S. v. Griffin, 201 N. C., 541, 160 S. E., 826; S. v. Wentz, 176 N. C., 745, 97 S. E., 420.
No judge at any time during the trial of a cause is permitted to cast doubt upon the testimony of a witness or to impeach his credibility. C. S., 564; S. v. Winckler, 210 N. C., 556, 187 S. E., 792; S. v. Rhinehart, 209 N. C., 150, 183 S. E., 388; Morris v. Kramer, 182 N. C., 87, 108 S. E., 381; S. v. Rogers, 173 N. C., 755, 91 S. E., 854; Chance v. Ice Co., 166 N. C., 495, 82 S. E., 845; Bay v. Batterson, 165 N. C., 512, 81 S. E., 773. “The slightest intimatiоn from a judge as to the strength of the evidence or as to the credibility of a witness will always have great weight with the jury, and, therefore, we must be careful to see that neither pаrty is unduly prejudiced by an expression from the bench which is likely to prevent a fair and impartial trial” — Walker, J., in S. v. Ownby, 146 N. C., 677, 61 S. E., 630.
This is not to say that all prеcautionary instructions in respect of interested witnessеs should be withheld from the jury, but only that the cold neutrality of the impartial judge should constantly be observed. Withers v. Lane, 144 N. C., 184, 56 S. E., 855; Ferry v. Ferry, 144 N. C., 328, 57 S. E., 1; Park v. Exum, 156 N. C., 228, 72 S. E., 309. See Dunbar v. State, 159 Miss., 603, 132 So., 748, as published with exhaustive annotation in 85 A. L. R., 520.
As no reversible error has been made to appear, the verdict and judgment will be upheld.
No error.