Greene v. . Newsome

113 S.E. 569, 184 N.C. 77, 1922 N.C. LEXIS 19

Opinion

Adasis, J.

Tbe action was prosecuted for tbe purpose of canceling a deed, for certain property, alleged to bave been executed by tbe defendant J. 0. Newsome in fraud of bis creditors. Only one exception need be considered. Tbe record shows that during tbe cross-examination of a witness for tbe plaintiff tbe following incident occúrred: “By tbe court: Do you know where J. C. Newsome and Tom Newsome are, and also why they are not here in court to defend this action, as they should be? Their absence is a circumstance that a fraud has been committed. A. I haven’t seen either J. 0. Newsome or Tom here today.” To this remark of bis Honor tbe defendants in apt time excepted.

This Court has repeatedly held that a judge presiding should not at any time during tbe trial either express an opinion as to tbe weight of tbe evidence or make any remark from which tbe jury may reasonably draw an inference as to bis opinion of tbe facts. His Honor, no doubt, in an inadvertent moment, and evidently without intending to do so, overlooked tbe decisions of tbe Court and tbe purpose of tbe statute. Tbe jury may naturally bave adopted bis Honor’s intimation as conclusive on tbe question of fraud.

We think tbe defendants are entitled to a new trial. C. S., 564; Morris v. Kramer, 182 N. C., 89; S. v. Cools, 162 N. C., 586.

New trial.