State v. Holden , 280 N.C. 426 ( 1972 )

185 S.E.2d 889 (1972) 280 N.C. 426

STATE of North Carolina
v.
Edward HOLDEN.

No. 61.

Supreme Court of North Carolina.

January 28, 1972.

Clarence M. Kirk, Wendell, for defendant appellant.

Robert Morgan, Atty. Gen., and Edward L. Eatman, Jr., Raleigh, Staff Atty., for the State of N. C.

HUSKINS, Justice:

Mary Helen Jones stated on cross-examination that, although deceased had a knife on the trip to the hospital, he put it in his pocket and did not have a knife in his hand immediately after defendant shot him. "If he had a knife quick as he fell out, he'd had that knife in his hand or lying in the bed or somewhere close around him." This statement evoked the following exchange:

"Q. [by defense counsel] Don't you know a knife was found on the foot of this bed when they were cleaning up there?

"A. Nobody hadn't seen it.

"COURT: Now are you going to put on evidence to that effect or are you just making that up to ask the question?

"MR. KIRK [defense counsel]: Well, we have got some—

"COURT: Are you going to put on evidence to that effect?

"MR. KIRK: —on it, your Honor.

"COURT: Well, ask proper questions then."

Defendant argues the foregoing comments by the trial judge unmistakably indicated to the jury that defendant's contention about the knife was a fabrication unworthy of belief, amounted to an expression of opinion on the evidence, and was highly prejudicial. This constitutes defendant's first assignment of error.

The duty of absolute impartiality is imposed on the trial judge by G.S. § 1-180. Nowell v. Neal, 249 N.C. 516, 107 S.E.2d 107 (1959). The statute has been construed to prohibit any opinion or intimation of the judge at any time during the trial which is calculated to prejudice the parties in the eyes of the jury. State v. Douglas, 268 N.C. 267, 150 S.E.2d 412 (1966). The respective functions of the judge and jury in criminal trials are clearly demarcated by G.S. § 1-180; and by that demarcation the trial judge is denied the right, in any manner or in any form, to invade the province of the jury. Everette v. D. O. Briggs Lumber Co., 250 N.C. 688, 110 S.E.2d 288 (1959); In re Will of Holcomb, 244 N.C. 391, 93 S.E.2d 454 (1956); State v. Owenby, 226 N.C. 521, 39 S.E.2d 378 (1946). Jurors respect the judge and are easily influenced by suggestions, whether intentional or otherwise, emanating from the bench. Consequently, the judge "must abstain from conduct or language which tends to discredit or prejudice the accused or his cause with the jury." State v. Carter, 233 N.C. 581, 65 S.E.2d 9 (1951). Furthermore, remarks from the bench which tend to belittle and humiliate counsel, or which suggest that counsel is not acting in good faith, reflect not only on counsel but on the defendant as well and may cause the jury to disbelieve all evidence adduced in defendant's behalf. "Any remark of the presiding judge, made in the presence of the jury, which has a tendency to prejudice the jury against the unsuccessful party is ground for a new trial." Beacon Homes, Inc. v. Holt, 266 N.C. 467, 146 S.E.2d 434 (1966). See Annotation, Remarks or acts of trial judge criticizing, rebuking, or punishing defense counsel in criminal case, as requiring new trial or reversal, 62 A.L.R. 2d 166 (1958); Annotation, Prejudicial effect of remarks of trial judge criticizing counsel in civil case, 94 A.L.R. 2d 826 (1964); State v. Frazier, 278 N.C. 458, 180 S.E.2d 128 (1971).

The judge's critical remarks were indiscreet and improper and should not have been made. In a different setting they could be prejudicial so as to require a new trial. Here, however, in light of the evidence and considering the totality of circumstances, we hold that the comments from the bench of which defendant complains constituted harmless error. Not every ill-advised expression by the trial judge is of such harmful effect as to require a reversal. The objectionable language must be viewed in light of all the facts and circumstances, "and unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless." State v. Perry, 231 N.C. 467, 57 S.E.2d 774 (1950); State v. Hoover, 252 N.C. 133, 113 S.E.2d 281 (1960).

The facts and attendant circumstances in this case reveal a senseless killing, apparently without the slightest provocation. The evidence would support a conviction of murder in the second degree. Defendant offered no evidence in explanation or mitigation. There is nothing, save defense counsel's question which evoked the trial judge's ill-advised rejoinder, that the deceased was threatening defendant with a knife, or in any other manner, at the time and place the fatal shots were fired. Even so, defendant was only convicted of manslaughter. In this setting it is apparent that the words of the judge here under attack had no prejudicial effect on the result of the trial and must therefore be considered harmless. Unless it appears "with ordinary certainty that the rights of the prisoner have been in some way prejudiced by the remarks or conduct of the court, it cannot be treated as error." State v. Browning, 78 N.C. 555 (1877). Accord, State v. Brinson, 277 N.C. 286, 177 S.E.2d 398 (1970); State v. Swaney, 277 N.C. 602, 178 S.E.2d 399 (1971). On this record, there is no reason to believe that another trial would produce a different result more favorable to defendant. This assignment is overruled.

The matters complained of in defendant's remaining assignments of error are without significance and had no effect on the result of the trial. Further treatment of them is not required, and we overrule them without discussion.

Defendant having failed to show prejudicial error, the verdict and judgment will be upheld.

No error.