State v. Shinn , 234 N.C. 397 ( 1951 )

67 S.E.2d 270 (1951) 234 N.C. 397

STATE
v.
SHINN.

No. 363.

Supreme Court of North Carolina.

October 31, 1951.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Charles G. Powell, Jr. Member of Staff, Raleigh, for the State.

B. W. Blackwelder, Concord, for defendant appellant.

WINBORNE, Justice.

Defendant takes exception to, and assigns as error that portion of the charge of the court to the jury which reads as follows:

"Now in regard to the evidence of a detective or officer who has on the face of it violated the law, but when he is under subpoena and comes in and testifies for that purpose, goes out and buys it for the purpose of prosecuting and a subpoena is served on him and he comes in and testifies under that subpoena, under the statute I have just read to you, then he is immune from prosecution and he is forgiven by the law for his violation in buying the whiskey.

"The court charges you that it was commendable on the part of a detective and it is commendable of a law enforcement officer to use all reasonable and proper means in the apprehension of those who are violating the law of the land, and when they do so in that spirit that will enable the law to place its hands upon offenders and violators, and it is to the credit rather than to the discredit of the persons so acting."

These instructions tend to bolster the witnesses for the State, and to impair the effect of defendant's plea of not guilty. Hence the exception is well taken. The instructions must be held to be violative of the statute G.S. § 1-180 which declares that "no judge, in giving a charge to the petit jury, either in a civil or criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury". This inhibition has been applied uniformly in decisions of this Court, among which are these: State v. Dick, 60 N.C. 440; Crutchfield v. Richmond D. R. Co., 76 N.C. 320; State v. Ownby, 146 N.C. 677, 61 S.E. 630; State v. Cook, 162 N.C. 586, 77 S.E. 759; Chance v. Crystal Ice & Coal Co., 166 N.C. 495, 82 S.E. 845; Fourth Nat. Bank of Fayetteville v. McArthur, 168 N.C. 48, 84 S.E. 39; State v. Rogers, 173 N.C. 755, 91 S.E. 854, L.R.A.1917E, 857; Morris v. Kramer Bros. Co., 182 N.C. 87, 108 S.E. 381; State v. Owenby, 226 N.C. 521, 39 S.E.2d 378; State v. Benton, 226 N.C. 745, 40 S.E.2d 617; State v. Woolard, 227 N.C. 645, 44 S.E.2d 29; State v. Dooley, 232 N.C. 311, 59 S.E.2d 808.

In State v. Ownby, supra, 146 N.C. 677, 61 S.E. 630, Walker, J., for the court wrote in this manner: "The slightest intimation from a judge as to the strength of the evidence, or as to the credibility of a witness, will always have great weight with a jury; and therefore we must be careful to see that neither party is unduly prejudiced by any expression from the bench, which is likely to prevent a fair and impartial trial". This expression is quoted with approval in State v. Owenby, supra, 226 N.C. 521, 39 S.E.2d 378 and in State v. Woolard, supra.

In State v. Benton, supra [226 N.C. 745, 40 S.E.2d 619], it is said that "the judge may indicate to the jury what impression the evidence has made on his mind, or what deductions he thinks should be drawn therefrom, without expressly stating his opinion in so many words. This may * * follow the use of language or from an expression calculated to impair the credit which might otherwise and under normal conditions be given to the testimony of one of the parties".

And it may follow the use of language or from an instruction calculated to strengthen the credit which might not otherwise and under normal conditions be given to the testimony of a witness.

Indeed, in Crutchfield v. Richmond & D. R. Co. supra, this court expressly declared that "a judge ought not to state to the jury his estimate of a witness or how he appears to him".

"``Every suitor is entitled by the law to have his cause considered with the "cold neutrality of the impartial judge" and the equally unbiased mind of a properly instructed jury. This right can neither be denied or abridged'," as stated by the Court in Withers v. Lane, 144 N.C. 184, 56 S.E. 855, and quoted in State v. Woolard, supra [227 N.C. 645, 44 S.E.2d 30].

No doubt the language appearing in the instructions under challenge was inadvertently used by the trial judge. Nevertheless, it is "the probable effect or influence upon the jury, and not the motive of the judge", that "determines whether the party, whose right to a fair trial has thus been impaired, is entitled to another trial". State v. Ownby, supra.

Applying the provisions of the statute G.S. § 1-180 as interpreted and applied in decisions of this court, the conclusion that the charge under challenge is prejudicial to defendant is inescapable and, for error so pointed out, he is entitled to a new trial.

Other assignments of error are not considered since the matters to which they relate may not recur upon another trial.

New trial.