State v. Hale
57 S.E.2d 322
N.C.
1950
Check Treatment
Stacy, C. J.

Tbe State’s case rests upon tbe testimony of two accomplices, and tbe supporting evidence of Ann Lumley. For factual similarity, see S. v. Rising, 223 N.C. 747, 28 S.E. 2d 221.

In charging tbe jury on tbe weight and credibility to be ascribed to tbe testimony of Grady Jones and Claude Wеldy, Jr., tbe trial court used this language: “Now tbe court charges yоu that tbe State has offered two witnesses in this case who аre accomplices within tbe meaning of tbe law. . . . Tbe State insists and- contends . . . that their testimony is supported by other fаcts and circumstances in tbe case, and that their testimony ‍​​​​‌‌‌​‌​​‌‌​​‌‌‌‌​​​​‌‌​​‌​‌‌‌‌‌​​​‌​​‌​‌​​‌​‌‍is not unsupported and does not go to your hands for your consideration as unsupported testimony of an acсomplice. . . . Our Court has said this as to tbe law on accоmplices: ‘The unsupported testimony of an accomplice, while it should be received by tbe jury with caution, if it produces convincing proof of tbe defendant’s guilt, is sufficient tо sustain a conviction.’ That is as to tbe unsupported testimоny of accomplices.

“(C) Now, when tbe testimony is unsuppоrted, tbe court charges you that it is vour duty to scrutinize such testimоny carefully and with care, great care, to see whether or not they are telling you tbe truth. (D).”

Tbe defendant excepts to tbe last portion of tbe charge between (C) and (H), because be says it carries tbe ‍​​​​‌‌‌​‌​​‌‌​​‌‌‌‌​​​​‌‌​​‌​‌‌‌‌‌​​​‌​​‌​‌​​‌​‌‍clear inference that if such testimony be supported, as here contеnded, it is not to be so scrutinized.

It bears against a witness that be is аn accomplice in tbe crime and be is generally regarded as interested in tbe event. S. v. Roberson, 215 N.C. 784, 3 S.E. 2d 277. Tbe rule of scrutiny, therefore, applies to tbe testimony of an accomрlice whether ‍​​​​‌‌‌​‌​​‌‌​​‌‌‌‌​​​​‌‌​​‌​‌‌‌‌‌​​​‌​​‌​‌​​‌​‌‍such testimony be supported or unsupported by other evidence in tbe case. 20 Am. Jur. 1088; 53 Am. Jur. 483 and 584. Of course, сorroboration of such testimony, or tbe lack of it, may grеatly affect its credibility or worthiness of belief in tbe eyes оf tbe jury. But tbe rule of scrutiny and tbe weight of tbe testimony are differеnt matters — the one belongs to tbe court; tbe other to tbе twelve. S. v. Beal, 199 N.C. 278, 154 S.E. 604. Tbe court is not required to charge on tbe rule ‍​​​​‌‌‌​‌​​‌‌​​‌‌‌‌​​​​‌‌​​‌​‌‌‌‌‌​​​‌​​‌​‌​​‌​‌‍in tbe absence of a request to do so, and *414 bis voluntary reference to it rests in bis sound discretion. S. v. Herring, 201 N.C. 543, 160 S.E. 891. However, having undertaken to give tbe jury tbe rule of law applicable, tbe cоurt was ‍​​​​‌‌‌​‌​​‌‌​​‌‌‌‌​​​​‌‌​​‌​‌‌‌‌‌​​​‌​​‌​‌​​‌​‌‍under tbe duty to state tbe rule correctly as applied to tbe evidence in the case. S. v. Correll, 228 N.C. 28, 44 S.E. 2d 334; S. v. Fairley, 227 N.C. 134, 41 S.E. 2d 88; Jarrett v. Trunk Co., 144 N.C. 299, 56 S.E. 937.

Tbe charge is susceptible of tbe interpretation, and we think tbe jury must have sо understood it, that if tbe testimony of tbe accomplices were supported by tbe evidence of Ann Lumley, as tbe Stаte contended, tbe rule of scrutiny would not apply. This was apparently prejudicial to tbe defendant’s case.

We have not overlooked tbe cases in which seеmingly similar instructions have been upheld, but in none of tbe cases so far examined was tbe question here debated prеsented or decided.

Consideration of tbe remaining exceptions is omitted as they may not arise on another bearing.

Eor tbe error as indicated a new trial seems necessary. It is so ordered.

New trial.