State v. . Oakley
186 S.E. 244
N.C.
1936
Check Treatment
Clarkson, J.

At the close of the State’s evidence, and at the close of all the evidence, the defendant made motions in the court below for judgment of nonsuit. N. 0. Code, 1935 (Michie), sec. 4643. The court below overruled these motions, and in this we can see no error.

N. O. Code, supra, sec. 4232, is as follows: “There shall be two degrees in the crime of burglary as defined at the common law. If the crime be committed in a dwelling house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling house or sleeping apartment at the time of the *210 commission of such crime, it shall be burglary in the first degree. If such crime be committed in a dwelling house or sleeping apartment not actually occupied by any one at the time of the commission of the crime, or if it be committed in any house within the curtilage of a dwelling house, or in any building not a dwelling house but in which is a room used as a sleeping apartment and not actually occupied as such at the time of the commission of the crime, it shall be burglary in the second degree.”

Section 4233 : “Any person convicted, according to due course of law, of the crime of burglary in the first degree shall suffer death, and any one so convicted of burglary in the second degree shall suffer imprisonment in the State’s Prison for life, or for a term of years, in the discretion of the court.”

The evidence in the present case is circumstantial, although sufficient to be submitted to a jury. We consider the only material exception and assignment of error which has merit: The officer never measured or compared any of the tracks be followed and never measured or compared the shoes of the defendant with the tracks be followed. During the testimony of the officer who followed tracks, be testified that the tracks be was following crossed tracks made by John Sommers. Then it was that the court asked the question set forth above and made the statement to which defendant excepted and assigned error. It will be noted that immediately after telling the witness be could not say who made the tracks that the judge himself said, “You tracked the defendant to whose house?” This was not a question asked by the solicitor.

In S. v. Bryant, 189 N. C., 112 (114), speaking to the subject, we find: “ 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 be 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 bis 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, *211 determines whether the party whose right to a fair trial has been impaired is entitled to a new trial.” S. v. Sullivan, 193 N. C., 754.

The expression of the court below, “You tracked the defendant to whose house?” we think prejudicial, and especially so as the evidence of the State was circumstantial. Although inadvertently made by the learned and able judge, yet we think the expression, even when followed by “I didn’t mean to say the defendant,” would make a lasting impression on the jury, who alone were the triers of the facts. Then, again, the defendant was on trial for his life, and this lapsus linguae may have determined his fate.

The principle above set forth does not apply to the power of the court to withdraw incompetent evidence and instruct the jury not to consider it. S. v. Stewart, 189 N. C., 340 (344).

For the reasons given, we think the defendant is entitled to a

New trial.

ScheNOK, J., concurs in result.