State v. Newton , 249 N.C. 145 ( 1958 )

105 S.E.2d 437 (1958) 249 N.C. 145

STATE
v.
Warren Harding NEWTON.

No. 365.

Supreme Court of North Carolina.

November 5, 1958.

Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. T. W. Bruton, for the State.

William T. Watkins, Royster & Royster, Oxford, for defendant.

DENNY, Justice.

Among the defendant's 26 assignments of error numbers 20 and 25 involve instructions to the jury. Assignment of error number 20 is directed to the following portion of the court's charge: "There could be no other explanation of his conduct there except the assault was made with a deadly weapon with the intent to kill, and that it constituted within the purview of the law and the statute, serious injury."

While the above language was used while the court was undertaking to state the State's contentions, such statement is a separate and distinct sentence and is not preceded by the words, "The State further says and contends," or similar language, and while it may have been the Court's intention to make this statement to the jury as a part of the State's contentions, it was not so stated.

Assignment of error number 25 challenges the instruction given to the jury under the following circumstances. The sheriff informed the court that the jury wanted to ask a question. When the jury returned to the courtroom, the court inquired whether or not it had agreed upon a verdict. The foreman informed the court that it had not. The court then said, "Is there some information that you desire?" The foreman of the jury replied, "We understood that you wanted this in writing." The court then said, "No, not necessarily in writing, but I want you to specify your verdict. I instructed you you could return a verdict of guilty as charged in the bill of indictment, which charge was assault with a deadly weapon with intent to kill inflicting serious injury not resulting in death. Otherwise, specify it. Do you understand?"

We think the foregoing instructions embraced in the assignments of error numbered 20 and 25 are susceptible of being interpreted by the jury as an expression or intimation on the part of the court to the effect that in its opinion the jury should return a verdict of guilty as charged.

In State v. Simpson, 233 N.C. 438, 64 S.E.2d 568, 571, Stacy, C. J., in speaking for the Court, said: "It can make no difference in what way or manner or when the opinion of the judge is conveyed to the jury, whether directly or indirectly, by comment on the testimony of a witness, by arraying the evidence unequally in the charge, by imbalancing the contentions of the parties, by the choice of language in stating the contentions, or by the general tone and tenor of the trial. The statute forbids any intimation of his opinion in any form whatever, it being the intent of the law to insure to each and every litigant a fair and impartial trial before the jury." State v. Love, 229 N.C. 99, 47 S.E.2d 712; State v. Benton, 226 N.C. 745, 40 S.E.2d 617; State v. DeGraffenreid, 223 N.C. 461, 27 S.E.2d 130; State v. Maxwell, 215 N.C, 32, 1 S.E.2d 125; State v. Rhinehart, 209 N.C. 150, 183 S.E. 388.

While there are other exceptions and assignments of error which are not without merit, we deem it unnecessary to discuss them since, in our opinion, the defendant is entitled to a new trial, and it is so ordered.

It must be conceded that the defendant's conduct toward the prosecuting witness was unwarranted, indefensible and vicious. However, he is entitled to a trial free from prejudicial error.

New trial.

PARKER, J., not sitting.