State v. Bumgarner

Court of Appeals of North Carolina

State v. Bumgarner

255 S.E.2d 663, 42 N.C. App. 71, 1979 N.C. App. LEXIS 2735

CourtCourt of Appeals of North Carolina

DecidedJune 19, 1979

DocketNo. 7925SC187

StatusPublished

This text of 255 S.E.2d 663 (State v. Bumgarner) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Bumgarner, 255 S.E.2d 663, 42 N.C. App. 71, 1979 N.C. App. LEXIS 2735 (N.C. Ct. App. 1979).

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Opinion

WEBB, Judge.

The appellant assigns as error the action of the judge, which he contends prevented him from calling a witness he had intended to use at the trial. As we read the Canons of Ethics of the North Carolina State Bar, it is not unethical for an attorney to call a witness who he knows will plead the Fifth Amendment. Nevertheless, the interpretation of the law by the presiding judge must be accepted during a trial. We assume the defendant’s attorney knew the severe penalty to which he might be subject if he did something the presiding judge considered unethical. See In re Palmer, 296 N.C. 638, 252 S.E. 2d 784 (1979). On the facts of this case it appears defendant was prevented from calling as a witness an eyewitness to the alleged crime because of an erroneous interpretation of the law by the presiding judge. We hold this to be prejudicial error.

We do not discuss defendant’s other assignments of error as they may not recur.

[74]*74New trial.

Chief Judge MORRIS and Judge HEDRICK concur.

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WEBB, Judge.

The appellant assigns as error the action of the judge, which he contends prevented him from calling a witness he had intended to use at the trial. As we read the Canons of Ethics of the North Carolina State Bar, it is not unethical for an attorney to call a witness who he knows will plead the Fifth Amendment. Nevertheless, the interpretation of the law by the presiding judge must be accepted during a trial. We assume the defendant’s attorney knew the severe penalty to which he might be subject if he did something the presiding judge considered unethical. See In re Palmer, 296 N.C. 638, 252 S.E. 2d 784 (1979). On the facts of this case it appears defendant was prevented from calling as a witness an eyewitness to the alleged crime because of an erroneous interpretation of the law by the presiding judge. We hold this to be prejudicial error.

We do not discuss defendant’s other assignments of error as they may not recur.

[74]*74New trial.

Chief Judge MORRIS and Judge HEDRICK concur.

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Bluebook (online)

255 S.E.2d 663, 42 N.C. App. 71, 1979 N.C. App. LEXIS 2735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bumgarner-ncctapp-1979.

Opinion

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