20 N.C. App. 275 | N.C. Ct. App. | 1973
Defendant contends that the trial court committed prejudicial errors in its jury charge.
The State had introduced as evidence during the trial a voluntary statement made by the defendant to Deputy Sheriff Otis Whéeler. The statement was read into the record by Officer Wheeler as follows:
“He said he got ready to leave and backed up the car and some boys walked behind my car, and I heard one of the boys say ‘What are you going to do, run over me?’ So I stopped and got out of my car and told the boys T am not going to run over them [sic]. Do you see this big car ?’ So all of the boys went around the car. One boy come [sic] up in front of the car and said ‘You are not going to move the car.’ I stepped out and went to the front part of my car and told the boy that I was going to move it, and if he did not move and get out of the way I would run over him. All of the time the boy started toward me, and I pushed him back and he came back to me again and I slapped him. Some more boys were standing around and I told him I was going to move my car and he said ‘No, you are not.’ At that time, I pulled my gun and shot him. He fell and I tossed the gun across the car.”
Defendant specifically excepts to the portions of the jury charge which read as follows:
“Now there has been some evidence in this case that the defendant, Eug:ene Clanton admitted some of the facts*277 related to the crime that he [sic] alleged to have committed. If you find that the defendant has admitted certain facts related to the crime then you should consider all of the circumstances under which his admission was made in determining whether or not it was a truthful statement made by him at a time prior to the time that he came to trial on this day.”
The instruction that there was evidence that defendant admitted some of the facts related to the crime was an assumption by the judge of a material fact which was not in evidence. It constituted an expression of opinion that a fact had been proven. Error committed by the court in expressing an opinion on the facts is virtually impossible to cure. 3 Strong, N. C. Index 2d, Criminal Law, § 170, pp. 138-139.
The remaining assignments of error are not discussed because the questions probably will not arise on a new trial.
New trial.