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State v. McRae , 240 N.C. 334 ( 1954 )


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  • 82 S.E.2d 67 (1954)
    240 N.C. 334

    STATE
    v.
    McRAE.

    No. 655.

    Supreme Court of North Carolina.

    May 19, 1954.

    F. D. Hackett, Lumberton, and L. J. Britt, Washington, N. C., and Robert Weinstein, Lumberton, for defendant, appellant.

    Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and William P. Mayo, Member of Staff, for the State.

    PER CURIAM.

    The defendant's assignments of error are to the admission of evidence and to the judgment. His second assignment of error, based upon his exception 23, arose as follows. The defendant testified in his own behalf. The State in rebuttal called as a witness Paul McQueen, a deputy sheriff, who testified that he knew the general reputation of the defendant, and that the defendant had had the reputation for five or six years of making and selling whiskey. After the direct and cross-examination of this witness the presiding judge asked the witness the following questions:

    "Q. Have you made raids on this place? A. No, sir, haven't searched his house.

    "Q. Does he have reputation of handling or manufacturing whiskey? A. He has a reputation of manufacturing it.

    "Q. You have never searched his premises? A. No, sir.

    "Q. Know whether other officers have? A. Not that I know of.

    "Q. What does his reputation grow out of? A. Of wholesaling, manufacturing whiskey, reports coming to the office.

    "Q. Does he have the reputation of selling liquor at his residence? Objection—over ruled—exception.

    "Exception No. 23. A. No, sir."

    The questions asked by the judge went far beyond an effort to obtain a proper *68 understanding and clarification of the witness's testimony. Considering the question asked, and the answer given over the defendant's objection and exception, in connection with the other questions asked the witness by the judge, we are of the opinion that the conscientious trial judge unintentionally conveyed to the jury an impression that he had an opinion on the facts in evidence adverse to the defendant. The conclusion that such was its probable meaning to the jury seems apparent, thereby prejudicing the defendant's right to a fair and impartial trial, and necessitating a new trial. G.S.N.C. § 1-180; State v. Canipe, 240 N.C. 60, 81 S.E.2d 173; State v. Smith, 240 N.C. 99, 81 S.E.2d 263; State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; State v. Woolard, 227 N.C. 645, 44 S.E.2d 29.

    It is ordered that the defendant be granted a

    New Trial.