State v. . Cox

Supreme Court of North Carolina

State v. . Cox

64 S.E. 199, 150 N.C. 846, 1909 N.C. LEXIS 168

CourtSupreme Court of North Carolina

DecidedApril 14, 1909

StatusPublished

Cited by6 cases

This text of 64 S.E. 199 (State v. . Cox) is published on Counsel Stack Legal Research, covering Supreme Court 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. . Cox, 64 S.E. 199, 150 N.C. 846, 1909 N.C. LEXIS 168 (N.C. 1909).

Pincite

Opinion

Clark, C. J.

Tbe State called tbe wife of tbe defendant, wbo was present under subprena, and tendered ber to tbe defendant. Tbe court ruled tbat tbe State could not examine ber as a witness — tbat sbe was a competent witness only for tbe defendant. Tbe solicitor, in bis argument to the jury, commented on tbe failure of tbe defendant to corroborate bis own testimony by bis wife. On objection made, bis Honor stated tbat “tbe wife was not competent and would not be allowed to bear witness against tbe husband; tbat ber testimony would be competent only in behalf of ber husband, and that as tbe wife was not permitted to testify against ber husband, and bad not done so, tbe jury could not consider what she knew or did not know.” And in bis charge tbe court told tbe jury “it was not for tbe State to examine the wife of tbe defendant as a witness against ber husband, but it was competent for tbe defendant to use ber as a witness.”

*847 Tbe Revisal, sec. 1634, provides: “The husband or wife of the defendant, in all criminal actions or proceedings, shall be a competent witness for the defendant, but the’ failure of such witness to be examined shall not be used to the prejudice of the defense.” The tender of the wife by the State and the remarks of the solicitor sharply called attention to the failure of the’ defense to examine the defendant’s wife. Objection was made, but the court, instead of telling the jury that they should not let that fact prejudice the defendant, on both occasions rather accentuated the matter by telling the jury that the State could not use the wife of the defendant as a witness, but that he could. The effect, though unintentional on the part of his Honor, was to throw the fault of the wife not being a witness upon the defendant, since he could have put her on and the State could not. There was no caution that such failure to use the wife as a witness should not be. considered by the jury. Yet the tender, and the remarks of counsel being called to the judge’s attention, called for such caution, and his .failing to give it was prejudicial.

Error.

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Clark, C. J.

Tbe State called tbe wife of tbe defendant, wbo was present under subprena, and tendered ber to tbe defendant. Tbe court ruled tbat tbe State could not examine ber as a witness — tbat sbe was a competent witness only for tbe defendant. Tbe solicitor, in bis argument to the jury, commented on tbe failure of tbe defendant to corroborate bis own testimony by bis wife. On objection made, bis Honor stated tbat “tbe wife was not competent and would not be allowed to bear witness against tbe husband; tbat ber testimony would be competent only in behalf of ber husband, and that as tbe wife was not permitted to testify against ber husband, and bad not done so, tbe jury could not consider what she knew or did not know.” And in bis charge tbe court told tbe jury “it was not for tbe State to examine the wife of tbe defendant as a witness against ber husband, but it was competent for tbe defendant to use ber as a witness.”

*847 Tbe Revisal, sec. 1634, provides: “The husband or wife of the defendant, in all criminal actions or proceedings, shall be a competent witness for the defendant, but the’ failure of such witness to be examined shall not be used to the prejudice of the defense.” The tender of the wife by the State and the remarks of the solicitor sharply called attention to the failure of the’ defense to examine the defendant’s wife. Objection was made, but the court, instead of telling the jury that they should not let that fact prejudice the defendant, on both occasions rather accentuated the matter by telling the jury that the State could not use the wife of the defendant as a witness, but that he could. The effect, though unintentional on the part of his Honor, was to throw the fault of the wife not being a witness upon the defendant, since he could have put her on and the State could not. There was no caution that such failure to use the wife as a witness should not be. considered by the jury. Yet the tender, and the remarks of counsel being called to the judge’s attention, called for such caution, and his .failing to give it was prejudicial.

Error.

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Bluebook (online)

64 S.E. 199, 150 N.C. 846, 1909 N.C. LEXIS 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cox-nc-1909.

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