State v. . Bryant
126 S.E. 107
N.C.
1925
Check Treatment
Adams, J.

“No judge, in giving a charge to the petit jury, either in a civil or a.criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising therein.” C. S., 564. In terms, this statute refers to the charge, but it has always been construed as including the expression of any opinion, or even an intimation by the judge, at any time during the trial, which is calculated to prejudice either of the parties. Morris v. Kramer, 182 N. C., 87, 91. And when .once expressed, such opinion or intimation cannot be recalled. In the case last cited, the Court said: “When the damage is once done, it cannot be repaired, because, as we know, the baneful impression on the minds of the jury remains there still. . . . One word of untimely rebuke of his witness may so cripple a party as to leave him utterly helpless before the jury.” Bank v. McArthur, 168 N. C., 48; S. v. Cook, 162 N. C., 586; S. v. Dick, 60 N. C., 440. It is also held that the probable effect or influence upon the jury, and not the motive of the judge, determines whether the party whose right to a fair trial has been impaired is entitled to a new trial.

Illustrations of the principle are found in S. v. Ownby, 146 N. C., 677, in which the judge remarked that certain witnesses were not interested in the result of the action; in S. v. Rogers, 173 N. C., 755, in which the judge directed a witness to answer the questions concisely and “not be dodging”; in Morris v. Kramer, supra, in which the judge *115 propounded impeaching questions to a witness; and in Greene v. Newsome, 184 N. C., 77, in which the judge said that the absence of the defendants was “a circumstance that a fraud had been committed.” See, also, S. v. Hart, 186 N. C., 582. In S. v. Jones, 181 N. C., 546, the remark excepted to was not fatal to the conviction, because it was “necessarily understood as a mere pleasantry and could have reasonably had no applicable effect on the result.”

If we treat the remarks made by the presiding judge to the witnesses, Loudermilk and Henson, as harmless inadvertences, we are still confronted with the expression, “This witness- has the weakest voice or the shortest memory of any witness I ever saw” — language which was clearly susceptible of the construction that the testimony of the witness was at least questioned by the court, if not unworthy of credit.

The fact that exception was not entered at the time the remark was uttered is immaterial. 'The statute is mandatory, and all expressions of opinion by the judge during the trial, in like manner with the admission of evidence made incompetent by statute, may be excepted to after the verdict. Broom v. Broom, 130 N. C., 562.

We are confident that the expression of an opinion was utterly foreign to the purpose of the discreet and conservative judge who presided at the trial, and that the objectionable remark may have been impelled by a just and natural sense of impatience or displeasure, but the inadvertence was one that could not be corrected and its influence such as could not be dispelled.

We are of opinion that the defendant is entitled to a

New trial.