State v. Peters , 253 N.C. 331 ( 1960 )

116 S.E.2d 787 (1960) 253 N.C. 331

STATE
v.
Roy PETERS.

No. 434.

Supreme Court of North Carolina.

November 9, 1960.

T. W. Bruton, Atty. Gen., Glenn L. Hooper, Jr., Asst. Atty. Gen., for the State.

Charles F. Blanchard, Robert L. Farmer, Raleigh, for defendant.

PER CURIAM.

The appellant assigns as error the refusal of the court below to grant his motion for judgment as of nonsuit made at the close of the State's evidence and renewed at the close of all the evidence. The State offered ample evidence to take the case to the jury, and this assignment of error is overruled.

The defendant also assigns as error the court's examination of the State's witness Bob Alexander.

In our opinion, the questions asked by the court went far beyond an effort to obtain a proper understanding and clarification of the witness' testimony. The questions propounded by the court would have been entirely proper if they had been asked by the solicitor. However, we fear that the jury may have gotten the impression that the court had an opinion on the facts in evidence adverse to the defendant.

Certainly the able and conscientious judge who tried this case below did not intend to do anything to prejudice the rights of the defendant, but it is the probable effect or influence upon the jury as a result of what a judge does, and not his motive, that determines whether the right of the defendant to a fair trial has been impaired to such an extent as to entitle him to a new trial. State v. Smith, 240 N.C. 99, 81 S.E.2d 263.

There are numerous other assignments of error brought forward in the defendant's brief, but in view of the conclusion we have reached we deem it unnecessary to discuss them since they may not recur on another hearing.

The defendant is granted a new trial on authority of State v. McRae, 240 N.C. 334, 82 S.E.2d 67.

New trial.