State v. Pike , 267 N.C. 312 ( 1966 )

Per Curiam.

At the trial the defendant did not testify as a witness. He did not offer evidence. The State’s evidence disclosed that the owner of the stolen articles lived in a Greensboro apartment; that the defendant had lived with him for eight days prior to the time the owner missed the articles, some of which were recovered from a “loan and jewelry company” where they had been pledged for a loan. The owner of the shop at first was equivocal about the identity of the defendant as the one who pawned the stolen articles. In summing up the State’s evidence, however, the court charged the jury: “The State’s evidence tends to show by Mr. Kelly that on 7 August 1965, that he met the defendant in Graham, in a prison camp in Graham.” The record fails to disclose any such evidence from Mr. Kelly or any other witness. The court’s statement was the subject of Assignment of Error No. 5, based on Exception No. 5. The Attorney General’s brief says of the challenged statement: “This may or may not be prejudicial.”

True, the defendant did not request the court to correct the statement with reference to the testimony of the prosecuting witness and the defendant having met at a prison camp. Any objection on the part of counsel, short of a denial by the defendant which would have required him to testify as a witness, would have been of doubtful value in view of the court’s unjustified statement. The court committed error, probably prejudicial, by this statement. In view of the equivocal nature of the evidence and the failure of the jury to agree on a former trial, we deem the court’s error in placing him in a prison camp as sufficiently prejudicial to require that he be given, and he is awarded, a

New trial.

Moore, J., not sitting.