State v. . Harris

Mar 4, 1914
Versions:166 N.C. 243
80 S.E. 1067
1914 N.C. LEXIS 388
IIoke, J.

There were facts in evidence permitting an inference of guilt, and his Honor was correct in submitting the case to the jury. We must hold, however, that there was error in the charge of the court to the effect “That the jury ought not to consider the failure of the State to produce Ivey,” etc. It has been held in several cases that a solicitor must' be allowed the control and general management of the State’s case in a criminal prosecution, and may examine such of the witnesses as he may deem necessary or desirable. S. v. Lucas, 124 N. C., 825; S. v. Jones, 77 N. C., 520; S. v. Smallwood, 75 N. C., 104. But the fact that he fails to examine witnesses, cognizant of the material facts, bound over, as in this instance, for the State and presumably available at the trial, permits an inference of fact favorable to defendant, and the judge is allowed to express no opinion upon it. In one of the cases just cited, S. v. Smallwood, the Court holds:

“The solicitor is sole judge as to what witnesses shall be introduced on the part of the State; but it does not follow that the jury cannot consider the omission of the solicitor to introduce a witness, and draw from it any reasonable and natural inference. Therefore, it is error for a judge, on a trial in the Superior Court, to charge the jury that they cannot at all consider such omission.”

Our North Carolina statute, Rev., sec. 535“ forbidding the judge to express an opinion on the facts involved in a trial before him, applies not only to an opinion in the charge and on the ultimate fact of a defendant’s guilt or innocence, but it extends to any expression of opinion by the judge in the hearing of the jury at any time during the trial (S. v. Cook, 162 N. C., 586), *247 and includes any fact in evidence or any legitimate inference of fact arising on the testimony which is material and relevant to the issue. Withers v. Lane, 144 N. C., 184; S. v. Dick, 60 N. C., 440. In the well considered case of Withers v. Lane, 144 N. C., 184, it was held, Justice Walker delivering the opinion: “Under Revisal, sec. 535, the'trial judge is restricted to plainly and correctly stating the evidence and declaring and explaining the law arising thereon; and when his peculiar emphasis or language, or manner in presenting or arraying the evidence indicates his opinion upon the facts, or conclusions of fact, a venire de novo will be ordered.” And, in S. v. Dick, supra, the Court said: “Any remark made by a judge, on the trial of an issue by a jury, from which the jury may infer what his opinion is, as to the sufficiency or insufficiency of the evidence, or any part of it pertinent to the issue, is error; and the error is not corrected by his telling the jury that it is their exclusive province to determine on the sufficiency Or insufficiency of evidence, and that they are not bound by his opinion in regard thereto.”

The comments of his Honor, therefore, in reference to the failure of the State to examine the witness Ivey, were in contravention of our statute regulating jury trials, and constituted prejudicial error, entitling the defendant to have his cause tried before another jury.

'Venire de novo.