State v. SimpsonState v. Simpson
- Reporters:
- , ,
- Before:
- Stacy
Thе defendant is well advised in abandoning his demurrer to the sufficiency of the evidеnce to carry the case to the jury. The prosecuting witness was direct and positive in his testimony. Its probative value was for the twelve. S. v. Hovis, ante, 359.
A new trial must bе granted, however, because of the impeachment and depreciation by the court of the defendant’s evidence and that of his witnessеs, Green and Hurlocker. This was done, first, by ordering the defendant and his two witnesses intо custody during the trial, which action by the court came to the attention of the jury trying the case, S. v. McNeill, 231 N.C. 666, 58 S.E. 2d 366; and, secondly, by the manner in which the court’s charge was given to the jury. S. v. Rhinehart, 209 N.C. 150, 183 S.E. 388.
First. It would be begging the question to say that “it does not appear on the record” the jury had any knowledge of the order of arrest or the actual incarceration of the defendant and his witnesses during the trial. Kelly v. Boston, 201 Mass. 86, 87 N.E. 494. Thе jury was in the courtroom and saw what transpired, some of them at the beginning of the noon recess, and all of them after the court had reconvened for the afternoon session. They are presumed to know what goеs on in their presence. The case of S. v. McNeill, supra, is controlling on the point.
There is no suggestion of any сontumacy on the part of the defendant or his witnesses such as might have justifiеd the court in acting peremptorily, without prejudice to the defendant. S. v. Slagle, 182 N.C. 894, 109 S.E. 844; Seawell v. R. R., 132 N.C. 856, 44 S.E. 610; 53 Am. Jur. 82.
Second. The authorities are to the effect that no judge at any timе during the trial of a cause is permitted to cast doubt upon the testimony of a witness or to impeach his credibility. G.S. 1-180, as rewritten, Chap. 107, S.L. 1949; S. v. Cantrell, 230 N.C. 46, 51 S.E. 2d 887; S. v. Owenby, 226 N.C. 521, 39 S.E. 2d 378; S. v. Woolard, 227 N.C. 645, 44 S.E. 2d 29; S. v. Auston, 223 N.C. 203, 25 S.E. 2d 613.
*442 Tbe judge may indicate to tbe jury wbat impression tbe evidence bas made on bis mind, or wbat deduсtions be thinks should be drawn therefrom, without expressly stating bis opinion in so many words. This mаy be done by bis manner or peculiar emphasis or by bis so arraying and prеsenting tbe evidence as to give one of tbe parties an undue advаntage over tbe other, or, again, tbe same result may follow tbe use оf language or form of expression calculated to impair tbe сredit which might otherwise and under normal conditions be given by tbe jury to tbe testimony оf one of tbe parties. Speed v. Perry, 167 N.C. 122, 83 S.E. 176; S. v. Dancy, 78 N.C. 437; S. v. Jones, 67 N.C. 285.
It can make no difference in wbat way or’ mаnner or when tbe opinion of tbe judge is conveyed to tbe jury, whether direсtly or indirectly, by comment on tbe testimony of a witness, by arraying tbe evidencе unequally in tbe charge, by imbalancing tbe contentions of tbe parties, by tbе choice of language in stating tbe contentions, or by tbe general tоne and tenor of tbe trial. Tbe statute forbids any intimation of bis opinion in any form whatever, it being tbe intent of tbe law to insure to each and every litigant а fair and impartial trial before tbe jury. Withers v. Lane, 144 N.C. 184, 56 S.E. 855. “Tbe slightest intimation from a judge as to tbe strength of tbe evidence or as to tbe credibility of a witness will always have great weight with tbe jury, and, therefore, we must be careful to see that neithеr party is unduly prejudiced by an expression from tbe bench which is likely to prеvent a fair and impartial trial”— Walker, J., in S. v. Ownby, 146 N.C. 677, 61 S.E. 630.
It is true, where tbe court misquotes tbe evidence, e.g., here, “tbe defendant went on the stand and nеver denied that be was driving tbe car,” when tbe fact is be did deny it, tbe misquotation оr inadvertence should be called to bis attention at some apрropriate time before tbe case is given to tbe jury, so as to afford an opportunity of correction. Where this is done and no correction is made, tbe party is entitled to bis exception on appеal. Harris v. Draper, ante, 221, 63 S.E. 2d 209.
We think tbe court inadvertently conveyed to tbe jury an expression оf opinion upon tbe weight of tbe defendant’s evidence in violation оf tbe provisions of G.S. 1-180, as rewritten, Chap. 107, S.L. 1949. Tbe error may have been onе of those casualties which, now and then, befalls tbe most circumspect in tbe trial of causes on tbe circuit. S. v. Kline, 190 N.C. 177, 129 S.E. 417; S. v. Griggs, 197 N.C. 352, 148 S.E. 547; S. v. Stiwinter, 211 N.C. 278, 189 S.E. 868; S. v. Buchanan, 216 N.C. 34, 3 S.E. 2d 273; S. v. Floyd, 220 N.C. 530, 17 S.E. 2d 658; In re Will of Lomax, 225 N.C. 31, 33 S.E. 2d 63. Even so, tbe question is presented on appeal, and we must “Hew to tbe line, and let tbe chips fall wherever they may.” Barnes v. Teer, 219 N.C. 823, 15 S.E. 2d 379; S. v. Hovis, ante, 359.
*443 The defendant is entitled to a new trial. It is so ordered.
New trial.