State v. Anderson

PeR Curiam.

The State’s evidence was amply sufficient to carry the case to the jury. Defendant’s assignment of error to the denial of his motion for judgment of compulsory nonsuit made at the close of all the evidence has not been brought forward and discussed in his brief. It is therefore deemed abandoned. Rule 28, Rules of Practice in the Supreme Court. 254 N.C. 783, 810.

Defendant assigns as error this part of the charge:

“They [the State] say and contend that the statute under which the defendant in this case is charged is a good law; that its primary purpose is to protect life and property on the highways; that the primary purpose of this statute, and other criminal statutes, is not to punish anybody, but is to protect your rights, and that you have a right to operate a motor vehicle on the highways of the State without being run into by some drunk, or by some person drinking or operating a motor vehicle while under the influence, and that you should convict in this case, and that if you cannot, if you don't convict on this evidence, then the law or statute commonly referred to as the ‘drunken driving’ statute, would have no purpose and no effect.”

This assignment of error is well taken. We think the manner of stating the contentions of the State as set forth above, and particularly the peculiar emphasis of the words “that if you cannot, if you don’t convict on this evidence, then the law or statute commonly referred to as the ‘drunken driving’ statute, would have no purpose and no effect” was improper, gave the State an undue advantage over defendant, and was indicative of an opinion to the jury that the evidence had impressed on the judge’s mind that defendant was guilty and should be convicted, and comes within the prohibition of G.S. 1-180. S. v. Benton, 226 N.C. 745, 40 S.E. 2d 617; S. v. Rhinehart, 209 N.C. 150, 183 S.E. 388. For error in the charge defendant is entitled to a New trial.