State v. Lemmond , 12 N.C. App. 128 ( 1971 )

182 S.E.2d 636 (1971) 12 N.C. App. 128

STATE of North Carolina
v.
Steve LEMMOND.

No. 718SC445.

Court of Appeals of North Carolina.

August 4, 1971.

Atty. Gen. Robert Morgan, by Trial Atty. James E. Magner, Raleigh, for the State.

George F. Taylor, Goldsboro, for defendant appellant.

BRITT, Judge.

We hold that the court did not err in overruling defendant's motion for nonsuit.

Where time is not of the essence of the offense and the statute of limitations is not involved, a discrepancy between the date alleged in the indictment and the date shown by the State's evidence is ordinarily not fatal. G.S. § 15-155; State v. Wilson, 264 N.C. 373, 141 S.E.2d 801; State v. Williams, 261 N.C. 172, 134 S.E.2d 163; State v. Baxley, 223 N.C. 210, 25 S.E.2d 621; State v. Gore, 207 N.C. 618, 178 S.E. 209; State v. Overcash, 182 N.C. 889, 109 S.E. 626; State v. Lilley, 3 N.C.App. 276, 164 S.E.2d 498. This rule, however, cannot be used to ensnare a defendant and thereby deprive him of an opportunity to present his defense adequately, as where he relies upon alibi. State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396.

Here, time was not an essential ingredient of the offense charged. State v. Knight, 9 N.C.App. 62, 175 S.E.2d 332. See also State v. Suddreth, 223 N.C. 610, 27 S.E.2d 623. The statute of limitations was not involved, and alibi was not relied on as a defense. The record before us does not show that any action has been taken on the indictment in 70-CR-9819. We fail to see at this point any error prejudicial to defendant caused by the two indictments.

Defendant contends that the trial court denied him a fair and impartial trial by "injecting itself into the prosecution" of defendant, thereby expressing an opinion in violation of G.S. § 1-180. We agree with this contention.

The principle of law pertinent to this contention was well stated by Parker, Judge, in State v. Cox, 6 N.C.App. 18, 169 S.E.2d 134 (1969) as follows:

"Every person charged with crime has an absolute right to a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. State v. Belk, 268 N.C. 320, 150 S.E.2d 481. To accord this right the trial judge must abstain from conduct or language which tends to discredit or prejudice the accused or his cause with the jury. He is expressly forbidden to convey to the jury, in any manner, at any stage of the trial, his opinion as to whether a fact is fully or sufficiently proven. G.S. § 1-180. Our Supreme Court has said many times that G.S. § 1-180 does not apply to the charge alone, but prohibits a trial judge from asking questions or making comments at any time during the trial which amount to an expression of opinion as to what has or has not been shown by the testimony of a witness. Galloway v. Lawrence, 266 N.C. 245, 250, 145 S.E.2d 861, and cases cited therein. The criterion for determining whether the trial judge deprived an accused of his right to a fair trial by improper comments or remarks in the hearing of the jury is the probable effect upon the jury. In applying this test, the utterance of the judge is to be considered in the light of the circumstances under which it was made. State v. Carter, 233 N.C. 581, 65 S.E.2d 9."

In the instant case, W. H. Thompson and W. W. Campbell testified as witnesses for the State. During cross-examination of Thompson (set forth in six pages of the record) the court sustained its own objection to seven questions propounded by defense counsel. During cross-examination of Campbell (set forth in less than three pages of the record) the court sustained its own objection to nine questions propounded by defense counsel. On two occasions after sustaining its own objections, the court in the presence of the jury told defendant's counsel, "You know better than that."

We recognize the general rule that a trial court, in the exercise of its right to control and regulate the conduct of the trial, may, of its own motion, exclude or strike evidence which is wholly incompetent or inadmissible for any purpose, even though no objection is interposed to such evidence. Greer v. Whittington, 251 N.C. 630, 111 S.E.2d 912 (1960). But we think the instant case is analogous to State v. Frazier, 278 N.C. 458, 180 S.E.2d 128 (1971) where Justice Huskins, speaking for the Supreme Court said: "As already noted, some of the judge's comments run counter to the intent and meaning of G.S. § 1-180. Some do not. Any one of them standing alone, even when erroneous, might not be regarded as prejudicial. But when all the incidents are viewed in light of their cumulative effect upon the jury, we are constrained to hold that the cold neutrality of the law was breached to the prejudice of this defendant. The content, tenor, and frequency of the remarks, and the persistence on the part of the trial judge portray an antagonistic attitude toward the defense and convey to the jury the impression of judicial leaning prohibited by G.S. § 1-180. This requires a new trial."

For the reasons stated a new trial is ordered. We deem it unnecessary to consider the other questions raised in the briefs.

New trial.

MORRIS and PARKER, JJ., concur.