State v. . Griggs

148 S.E. 547, 197 N.C. 352, 1929 N.C. LEXIS 236

Opinion

Stacy, C. J.

It would appear that the instruction which constitutes the defendant’s second exceptive assignment of error, above set out, contains an inadvertent expression of opinion, prohibited by C. S., 564, to the effect that the defendant had taken the little girl off into the woods, when this was the crucial point in the case and strongly denied by the defendant. S. v. Hart, 186 N. C., 582, 120 S. E., 345; Speed v. Perry, 167 N. C., 122, 83 S. E., 176. The error is just one of those casualties which, now and then, befalls the most circumspect in the trial of causes on the circuit. S. v. Allen, 190 N. C., 498, 130 S. E., 163; S. v. Kline, 190 N. C., 177, 129 S. E., 417. Indeed, the case on appeal was not settled by the judge, and it is possible that the charge, as reported, is not as given, but we are bound by the record. S. v. Harbert, 185 N. C., 760, 118 S. E., 6; S. v. Wheeler, 185 N. C., 670, 116 S. E., 413; Cogdill v. Hardwood Co., 194 N. C., 745, 140 S. E., 732.

For the error as indicated, a new trial must be awarded, and it is so ordered.

New trial.