State v. Kimrey , 236 N.C. 313 ( 1952 )

72 S.E.2d 677 (1952) 236 N.C. 313

STATE
v.
KIMREY.

No. 217.

Supreme Court of North Carolina.

October 15, 1952.

Harry McMullan, Atty. Gen., and Samuel Behrends, Jr., Member of Staff, Raleigh, for the State.

W. H. McElwee, North Wilkesboro, and Donald L. Paschal, Siler City, for defendant, appellant.

JOHNSON, Justice.

The defendant assigns as error the way and manner in which the trial judge interrogated his witnesses. He contends that the judge extended and elaborated on the solicitor's cross-examination of the witnesses in a manner calculated to discredit and impeach them and cast doubt upon their testimony before the jury.

The rule is firmly fixed with us that "no judge at any time during the trial of a cause is permitted to cast doubt upon the testimony of a witness or to impeach his credibility." State v. Simpson, 233 N. C. 438, 441, 64 S.E.2d 568, 571; G.S. § 1-180, as rewritten, Chapter 107, Session Laws of 1949; State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; State v. Owenby, 226 N.C. 521, 39 S.E.2d 378; State v. Woolard, 227 N.C. 645, 44 S.E.2d 29; State v. Auston, 223 N.C. 203, 25 S.E.2d 613.

And under application of this salutary rule, it is well settled that it is improper for a trial judge to ask questions which are reasonably calculated to impeach or discredit a witness. Cross-examination for the purpose of impeachment is the prerogative of counsel, including the district solicitor in a case like this one, but it is never the privilege of the trial judge. State v. Bean, 211 N.C. 59, 188 S.E. 610; State v. Cantrell, supra; State v. Perry, 231 N.C. 467, 57 S.E.2d 774; State v. Winckler, 210 N.C. 556, 187 S.E. 792.

It is true that frequently in the course of a trial the presiding judge, in order to make for better understanding or clarification of what a witness has said or intended to say, or to develop some relevant fact overlooked, is entirely justified in propounding competent questions to a witness, but in doing so "care should be exercised to prevent by manner or word what may be understood by the jury as the indirect expression of an opinion on the facts." State v. Harvey, 214 N.C. 9, 11, 197 S.E. 620, 621; State v. Perry, supra.

In the present case, no doubt Judge Phillips in examining the witnesses intended only to clarify the issue by developing relevant facts and circumstances which he felt had been overlooked by counsel. However, in doing this it appears that the thread of his interrogation developed into cross-examination in manner and form calculated to impeach the witness and depreciate his testimony before the jury.

It may be conceded that not every illadvised or inadvertent comment or question of a presiding judge tending to impeach a witness is of sufficient harmful effect to constitute prejudicial error. Nevertheless, a study of the record in the present case leaves the impression that the over-all effect of the court's participation in the examination of the witnesses offered by the defendant weighed too heavily against him and amounts to prejudicial error entitling him to a new trial, and it is so ordered.

The fact that no exception was noted by the defendant at the time the judge interrogated these witnesses is immaterial under authoritative decisions of this Court. State v. Perry, supra; State v. Bryant, 189 N.C. 112, 126 S.E. 107.

New trial.