Thе defendant entered a plea of not guilty to the charge in the bill оf indictment, and undertook to prove an alibi. He offered a witness in his bеhalf not only for the purpose of establishing his alibi, but also to testify to а conversation which the witness claimed to have had with the prosеcutrix sometime prior to the trial, which conversation tended to exonerate the. defendant. Whereupon, the court took ovеr the examination of the witness and asked him the following questions :
“Q. When did you tаlk to her ? A. I talked with her on Saturday, two weeks before the last court.
“Q. Where was she ? A. At my place.
“Q. You asked her about it? A. Yes, sir, I asked her about it. ' Thát is right.
“Q. Why did you ask her about it ? A. Well, the fellow was in jail.
“Q. In other words you were in sympathy with her father? A. Well, everybody else was against him.”
The court struck out the last answer of the witness and instructed the jury not to consider it.
The defendant in apt time excepted tо the statement made by the court, as follows: “In other words, you were in sympathy with her father ?”
The defendant insists this statement was intended to impeaсh the witness and to discredit his testimony. We think the exception well taken and must be upheld. Any remark of the trial judge, made in the presence
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of thе jury, which has a tendency to prejudice the minds of the jurors against the unsuccessful party or. his witnesses, will be held for error.
Perry v. Perry,
Likewise, it is error for the trial judgе to ask a witness an impeaching question. “No judge at any time during the trial оf a cause is permitted to cast doubt upon the testimony of a witness or to impéach his credibility.” S
. v. Owenby,
The remark was undоubtedly an inadvertence. However, any expression made by the judge in the course of a trial, in the presence of the jury, which amounts to an expression of opinion as to the sufficiency or insufficiency of evidence, or which tends to impeach a witness, even though inadvertently made, cannot ordinarily be cured by instructing the jury
to
disregard such exрression; and here the court made no effort to do so.
Thompson v. Angel,
We think it is proрer to call attention to another error which appears on the face of this record, although the defendant did not excеpt thereto. His Honor in recapitulating the evidence in his charge to the jury, stated that the defendant “admitted, on cross-examination, thаt he had been in trouble in Kentucky, having been indicted and convicted for violating the prohibition laws on more than one occasion; аnd that he had been tried and convicted of an assault with intent to commit rape on his daughter Dorline Shelton; and that the judgment of the court in Virginiа was that he be imprisoned for a period of eighteen months, that sentence being suspended on condition that he leave the State; then he came to North Carolina and has been living here with his family until the time he was arrested on this charge.”
This appeal is before us on an agreed case and the trial judge has had no opportunity to review it. It may be that in the course of the trial below the defendant did admit thаt “he had been tried and convicted of an assault with intent to commit rаpe on his daughter Dorline Shelton,” *49 who was a witness for the State in the trial below, but no such admission appears in the record.
There must be a new trial, and it is so ordered.
New trial.