State v. Hewett , 295 N.C. 640 ( 1978 )

247 S.E.2d 886 (1978) 295 N.C. 640

STATE of North Carolina
v.
Lee Maxwell HEWETT, Jr.

No. 8.

Supreme Court of North Carolina.

October 17, 1978.

Rufus L. Edmisten, Atty. Gen. by Christopher S. Crosby, Associate Atty., Raleigh, for the State, appellant.

D. F. McGougan, Jr., Tabor City, for defendant-appellee.

HUSKINS, Justice:

This appeal turns on answer to the following question: Is prejudicial error committed when the trial judge in his charge to the jury in a criminal case gives the contentions of the State but fails to give any contentions of defendant? The answer is yes.

It is the general rule that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial judge an opportunity for correction; otherwise they are deemed to have been waived and will not be considered on appeal. State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970); State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968); State v. Butler, 269 N.C. 733, 153 S.E.2d 477 (1967). The rule is otherwise, however, where the trial judge in his charge states fully the contentions of the State but fails to give any contentions of the defendant. In that event the party whose contentions have been omitted is not required to object or otherwise bring the omission to the attention of the trial court. State v. Crawford, 261 N.C. 658, 135 S.E.2d 652 (1964); State v. King, 256 N.C. 236, 123 S.E.2d 486 (1962).

G.S. 1-180 requires the trial judge (1) to declare and explain the law arising on the evidence in the case, (2) to state the evidence to the extent necessary to explain the application of the law thereto, Sugg v. Baker, 258 N.C. 333, 128 S.E.2d 595 (1962); State v. Fleming, 202 N.C. 512, 163 S.E. 453 (1932), and (3) to give equal stress to the State and defendant in a criminal action.

This statute creates a substantial legal right, Adams v. Service Co., 237 N.C. 136, 74 S.E.2d 332 (1953); its provisions are mandatory; and a failure to comply with them is prejudicial error for which a new trial must be ordered. Therrell v. Freeman, 256 N.C. 552, 124 S.E.2d 522 (1962); State v. Jones, 254 N.C. 450, 119 S.E.2d 213 (1961); Godwin v. Hinnant, 250 N.C. 328, 108 S.E.2d 658 (1959).

The trial judge is not required by G.S. 1-180 to state the contentions of litigants, State v. Dietz, 289 N.C. 488, 223 S.E.2d 357 (1976), although the practice has developed in our courts as a helpful and accepted procedure and as a convenient method of presenting to the jury the matters at issue. Trust Co. v. Insurance Co., 204 N.C. 282, 167 S.E. 854 (1933). Therefore, failure to state the contentions of the parties is not error, but failure to give equal stress to the State and defendant in a criminal action is error. So, when the judge states the contentions of one party he must also give the pertinent contentions of the opposing party. Many decisions of this Court are to like effect including State v. Crawford, supra; State v. King, supra; State v. Kluckhohn, 243 N.C. 306, 90 S.E.2d 768 (1956); State v. Robbins, 243 N.C. 161, 90 S.E.2d 322 (1955); Brannon v. Ellis, 240 N.C. 81, 81 S.E.2d 196 (1954); In re Will of West, 227 N.C. 204, 41 S.E.2d 838 (1947); State v. Colson, 222 N.C. 28, 21 S.E.2d 808 (1942). Obviously equal stress is absent when the contentions of the State are fully stated and the contentions of the defendant are not stated at all. This requires a new trial.

It should be noted that G.S. 1-180 has been repealed by Chapter 711, section 33, of the 1977 Session Laws, effective 1 July 1978. However, in lieu thereof the General Assembly enacted 15A-1222 and 15A-1232. G.S. 15A-1222 prohibits expression of opinion by the judge in the presence of the jury at any stage of the trial on any question of fact to be decided by the jury. G.S. 15A-1232 reads as follows: "In instructing the jury, the judge must declare and explain the law arising on the evidence. He is not required to state the evidence except to the extent necessary to explain the application of the law to the evidence. He must not express an opinion whether a fact has been proved." While this section restates the substance of G.S. 1-180 it will be observed that the language requiring the judge to "give equal stress to the State and defendant in a criminal action" has been omitted. Even so, the Official Commentary explains the omission as follows: "The Commission found to be unnecessary the proviso in G.S. 1-180 requiring the judge to ``give equal stress to the State and defendant in a criminal action' because this is a duty imposed on the judge by general requirements of fairness to the parties; it is not necessary that it be explicitly stated." Thus what was heretofore explicit is now implicit and the law remains essentially unchanged.

For the reasons stated, the decision of the Court of Appeals awarding defendant a new trial is

AFFIRMED.