State v. Kimmer

106 S.E.2d 215, 249 N.C. 290, 1958 N.C. LEXIS 467

• Court: Supreme Court of North Carolina
• Decided: December 10, 1958
• Status: Published

Opinion

Per Curiam.

The Attorney General rightly concedes that, on authority of S. v. Davis, 223 N.C. 57, 25 S.E. 2d 187, defendant is entitled to a new trial on account of error in the charge.

Defendant’s wife testified in his behalf. In reviewing the State’s contentions, the court called attention to her status as an interested witness whose testimony should be scrutinized in the light of her interest. However, the court inadvertently failed to give an instruction to the effect that if, after such scrutiny, the jury believed her testimony, it should be given the same weight as the testimony of a disinterested credible witness.

Since a new trial, must be awarded for the court’s failure to give the indicated qualifying instruction, discussion of defendant’s other assignments of error is unnecessary. The questions raised therein involve matters that may not recur at the next trial.

New trial.

■ Parker, J., not sitting.